37 10 Tampering With Governmental Record

V.T.C.A., Penal Code � 39.02 Vernon's Texas Statutes and Codes Annotated Currentness Penal Code (Refs & Annos) Title 8. Offenses Against Public Administration Chapter 39. Abuse of Office (Refs & Annos) � V.T.C.A., Penal Code � 39.03 Vernon's Texas Statutes and Codes Annotated Currentness Penal Code (Refs & Annos) Title 8. Offenses Against Public Administration Chapter 39. Abuse of Office (Refs & Annos) � V.T.C.A., Penal Code � 37.10 Vernon's Texas Statutes and Codes Annotated Currentness Penal Code (Refs & Annos) Title 8. Offenses Against Public Administration Chapter 37. Perjury and Other Falsification (Refs & Annos) � 37.10. Tampering With Governmental Record

(a) A person commits an offense if he: (1) knowingly makes a false entry in, or false alteration of, a governmental record; (2) makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record; (3) intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record; (4) possesses, sells, or offers to sell a governmental record or a blank governmental record form with intent that it be used unlawfully; (5) makes, presents, or uses a governmental record with knowledge of its falsity; or

(6) possesses, sells, or offers to sell a governmental record or a blank governmental record form with knowledge that it was obtained unlawfully. (b) It is an exception to the application of Subsection (a)(3) that the governmental record is destroyed pursuant to legal authorization or transferred under Section 441.204, Government Code. With regard to the destruction of a local government record, legal authorization includes compliance with the provisions of Subtitle C, Title 6, Local Government Code. [FN1] (c)(1) Except as provided by Subdivisions (2) and (3) and by Subsection (d), an offense under this section is a Class A misdemeanor unless the actor's intent is to defraud or harm another, in which event the offense is a state jail felony. (2) An offense under this section is a felony of the third degree if it is shown on the trial of the offense that the governmental record was a public school record, report, or assessment instrument required under Chapter 39, Education Code, or was a license, certificate, permit, seal, title, letter of patent, or similar document issued by government, by another state, or by the United States, unless the actor's intent is to defraud or harm another, in which event the offense is a felony of the second degree. (3) An offense under this section is a Class C misdemeanor if it is shown on the trial of the offense that the governmental record is a governmental record that is required for enrollment of a student in a school district and was used by the actor to establish the residency of the student. (d) An offense under this section, if it is shown on the trial of the offense that the governmental record is described by Section 37.01(2)(D), is: (1) a Class B misdemeanor if the offense is committed under Subsection (a)(2) or Subsection (a)(5) and the defendant is convicted of presenting or using the record; (2) a felony of the third degree if the offense is committed under: (A) Subsection (a)(1), (3), (4), or (6); or (B) Subsection (a)(2) or (5) and the defendant is convicted of making the record; and (3) a felony of the second degree, notwithstanding Subdivisions (1) and (2), if the actor's intent in committing the offense was to defraud or harm another. (e) It is an affirmative defense to prosecution for possession under Subsection (a)(6) that the possession occurred in the actual discharge of official duties as a public servant. (f) It is a defense to prosecution under Subsection (a)(1), (a)(2), or (a)(5) that the false entry or false information could have no effect on the government's purpose for requiring the governmental record.

(g) A person is presumed to intend to defraud or harm another if the person acts with respect to two or more of the same type of governmental records or blank governmental record forms and if each governmental record or blank governmental record form is a license, certificate, permit, seal, title, or similar document issued by government. (h) If conduct that constitutes an offense under this section also constitutes an offense under Section 32.48 or 37.13, the actor may be prosecuted under any of those sections. (i) With the consent of the appropriate local county or district attorney, the attorney general has concurrent jurisdiction with that consenting local prosecutor to prosecute an offense under this section that involves the state Medicaid program. CREDIT(S) Acts 1973, 63rd Leg., p. 883, ch. 399, � 1, eff. Jan. 1, 1974. Amended by Acts 1989, 71st Leg., ch. 1248, � 66, eff. Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 113, � 4, eff. Sept. 1, 1991; Acts 1991, 72nd Leg., ch. 565, � 5, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 900, � 1.01, eff. Sept. 1, 1994; Acts 1997, 75th Leg., ch. 189, � 6, eff. May 21, 1997; Acts 1997, 75th Leg., ch. 823, � 4, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 659, � 2, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 718, � 1, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 771, � 3, eff. June 13, 2001; Acts 2003, 78th Leg., ch. 198, � 2.139, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 257, � 16, eff. Sept. 1, 2003; Acts 2005, 79th Leg., ch. 1364, � 1, eff. June 18, 2005. [FN1] V.T.C.A., Local Government Code � 201.001 et seq.

HISTORICAL AND STATUTORY NOTES 2006 Electronic Pocket Part Update 2003 Legislation Acts 2003, 78th Leg., ch. 198 and ch. 257 both added an identical subsec. (i). Section 22 of Acts 2003, 78th Leg., ch. 257 provides: "If before implementing any provision of this Act a state agency determines that a waiver or authorization from a federal agency is necessary for implementation of that provision, the agency affected by the provision shall request the waiver or authorization and may delay implementing that provision until the waiver or authorization is granted." 2005 Legislation Acts 2005, ch. 1364 added subsec. (c)(3) and made nonsubstantive changes. Section 2 of Acts 2005, 79th Leg., ch. 1364 provides:

"Section 37.10(c), Penal Code, as amended by this Act, applies only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense was committed before that date." 2003 Main Volume The 1989 amendment, in subsec. (b), added the second sentence. Acts 1991, 72nd Leg., chs. 113, 565, in subsec. (a), added subd. (4); Acts 1991, 72nd Leg., ch. 113, in subsec. (a) added subd. (5); in subsec. (c), substituted "Except as provided in Subsection (d) of this section, an" for "An"; and added subsecs. (d) to (f). Section 7 of Acts 1991, 72nd Leg., ch. 113 provides: "(a) The changes in law made by Sections 1 through 5 of this Act apply only to offenses committed on or after the effective date [Sept. 1, 1991] of this Act. "(b) The repeal by Section 6 of this Act of Articles 6675b-4 and 6675b-5, Revised Statutes, and of Chapter 286, Acts of the 53rd Legislature, Regular Session, 1953 (Article 6687-10, Vernon's Texas Civil Statutes), does not apply to an offense committed under those statutes before the effective date of this Act. "(c) For purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before the effective date. "(d) An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for this purpose." Section 12 of Acts 1991, 72nd Leg., ch. 565, provides: "(a) The changes in law made by Sections 1 through 5 and 7, 9, and 10 of this Act apply only to an offense committed on or after the effective date [Sept. 1, 1991] of this Act. For purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before the effective date. "(b) An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for this purpose." The 1993 amendment, in subsec. (a), renumbered subd. (4) as added by Acts 1993, 72nd Leg., ch. 565 as subd. (5), and renumbered former subd. (5) as subd. (6); in subsec. (d), substituted "state jail felony" for "felony of the third degree"; in subsec. (e), substituted "(a)(6)" for "(a)(5) of this section"; inserted subsec. (f), redesignated former subsec. (f) as subsec. (g); and made other nonsubstantive changes. Acts 1997, 75th Leg., ch. 189, in subsec. (d), inserted "letter of patent"; and added subsec. (h). Section 21 of Acts 1997, 75th Leg., ch. 189 provides:

"(a) The change in law made by this Act applies only to a criminal offense committed on or after the effective date [May 21, 1997] of this Act. For the purposes of this Act, a criminal offense is committed before the effective date of this Act if any element of the offense occurs before that date. "(b) An offense committed before the effective date of this Act is covered by the law in effect when the criminal offense was committed, and the former law is continued in effect for this purpose." Acts 1997, 75th Leg., ch. 823, in subsec. (d), inserted "by another state, or by the United States,". Section 5 of Acts 1997, 75th Leg., ch. 823 provides: "This Act takes effect September 1, 1997. The changes in law made by this Act apply only to an offense committed on or after September 1, 1997. An offense committed before September 1, 1997, is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before September 1, 1997, if any element of the offense occurred before that date." Acts 1999, 76th Leg., ch. 659 designated subsec. (c)(1) and therein substituted "by Subdivision (2) and by" for "in"; redesignated former subsec. (d) as subsec. (c)(2); and added a new subsec. (d). Section 6 of Acts 1999, 76th Leg., ch. 659 provides: "(a) The change in law made by this Act to Chapter 37, Penal Code, applies only to an offense committed on or after the effective date [Sept. 1, 1999] of this Act. For purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before the effective date. "(b) An offense under Chapter 37, Penal Code, committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose." Acts 1999, 76th Leg., ch. 718, in subsec. (d), inserted "public school record, report, or assessment instrument required under Chapter 39, Education Code, or was a". Section 2 of Acts 1999, 76th Leg., ch. 718 provides: "The change in law made by this Act applies only to an offense committed on or after the effective date [Sept. 1, 1999] of this Act. An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense occurred before that date." Acts 2001, 77th Leg., ch. 771 in subsec. (b), inserted a reference to V.T.C.A., Government Code � 441.204. Section 4 of Acts 2001, 77th Leg., ch. 771 provides: "The change in law made by this Act applies to the transfer of a record regardless of whether the transfer occurred before, on, or after the effective date [June 13, 2001] of this Act."

Prior Laws: Rev.P.C.1879, arts. 230 to 239, 741. Rev.P.C.1895, arts. 246 to 255, 255a, 875. Rev.P.C.1911, arts. 352 to 362, 943, 1346. Acts 1951, 52nd Leg., p. 616, ch. 364. Acts 1951, 52nd Leg., p. 670, ch. 387. Acts 1971, 62nd Leg., p. 1858, ch. 546. Vernon's Ann.P.C. (1925) arts. 354 to 364, 438c, 438d, 1002, 1002a, 1427. CROSS REFERENCES Exception explained, see V.T.C.A., Penal Code � 2.02. Forgery, see V.T.C.A., Penal Code � 32.21. Fraudulent destruction, removal or concealment of writing, see V.T.C.A., Penal Code � 32.47. "Governmental record" defined, see V.T.C.A., Penal Code � 37.01. "Harm" defined, see V.T.C.A., Penal Code � 1.07. "Intentionally" and "knowingly" defined, see V.T.C.A., Penal Code � 6.03. "Person" defined, see V.T.C.A., Penal Code � 1.07. Public schools, violations of this section, penalties, Admissions, falsified information, see V.T.C.A., Education Code � 25.001. Foundation school program, see V.T.C.A., Education Code � 44.051. Punishment, Class A misdemeanor, see V.T.C.A., Penal Code � 12.21. Class B misdemeanor, see V.T.C.A., Penal Code � 12.22 Second degree felony, see V.T.C.A., Penal Code � 12.33. State jail felony, see V.T.C.A., Penal Code � 12.35. Third degree felony, see V.T.C.A., Penal Code � 12.34. Specimen, refusal to give, report, governmental record, see V.T.C.A., Transportation Code � 724.031 et seq. State Property Tax Board, application forms, notice of penalties under this section,

Agricultural land appraisal, see V.T.C.A., Tax Code � 23.54. Exemptions, see V.T.C.A., Tax Code � 11.43. Timber land appraisal, see V.T.C.A., Tax Code � 23.75. ADMINISTRATIVE CODE REFERENCES Department of Human Services, fraud or abuse involving providers except medical, statutory bases for prosecution, see 40 TAC � 79.2202. LIBRARY REFERENCES 2003 Main Volume Records 22. Westlaw Topic No. 326. C.J.S. Records �� 32, 57 to 59. RESEARCH REFERENCES 2006 Electronic Pocket Part Update ALR Library 75 ALR 4th 1067, What Constitutes a Public Record or Document Within Statute Making Falsification, Forgery, Mutilation, Removal, or Other Misuse Thereof an Offense. Encyclopedias TX Jur. 3d Acknowledgments & Proof for Record � 108, Liability, Generally. TX Jur. 3d Criminal Law � 1096, Record of Fraudulent Court. TX Jur. 3d Criminal Law � 1205, Defenses and Exceptions; Presumption. TX Jur. 3d Criminal Law � 1206, Degree of Offense; Presumption. TX Jur. 3d Criminal Law � 1208, Evidence; Sufficiency. TX Jur. 3d Criminal Law � 1209, Evidence; Sufficiency -- What Constitutes Governmental Record. TX Jur. 3d Public Aid & Welfare � 36, Effect of Penal Code. TX Jur. 3d Public Officers & Employees � 115, Burden of Proof. TX Jur. 3d Schools � 173, Falsification of Records or Reports.

Forms Texas Jurisprudence Pleading & Practice Forms 2d Ed � 9:12, Introductory Comments. Treatises and Practice Aids McDonald & Carlson Texas Civil Practice � 2:42, Fairness. McDonald & Carlson Texas Civil Practice � 5:35, Tampering With a Governmental Record. McDonald & Carlson Texas Civil Practice � 2:112, Tampering With a Governmental Record. McDonald & Carlson Texas Civil Practice � 2:113, Tampering With Evidence; Spoliation. Charlton, 6 Tex. Prac. Series � 21.8, Tampering With a Governmental Record. Charlton, 6 Tex. Prac. Series � 19.12, Fraudulent Destruction, Removal, or Concealment of a Writing. McCormick, Blackwell & Blackwell, 8 Tex. Prac. Series � 102.4, List of Statutory Presumptions. Howell, 21 Tex. Prac. Series � 467, Owner's Application. Brooks, 22 Tex. Prac. Series � 3.11, Official Misconduct. Brooks, 22 Tex. Prac. Series � 7.12, Open Records Act -- Enforcement. Brooks, 22 Tex. Prac. Series � 7.14, Penal Code. Brooks, 35 Tex. Prac. Series � 10.25, Criminal Offenses. Brooks, 35 Tex. Prac. Series � 10.44, Open Records Act-Enforcement. Civins, Hall & Sahs, 45 Tex. Prac. Series � 4.17, Offenses Under the Texas Penal Code. Schuwerk and Hardwick, 48 Tex. Prac. Series App. A, Appendix A. Texas Disciplinary Rules of Professional Conduct. Schuwerk and Hardwick, 48 Tex. Prac. Series � 13.04, Rule 8.04 Misconduct. Civins, Hall & Sahs, 45 Tex. Prac. Series � 4.12, Judicial Enforcement Remedies. NOTES OF DECISIONS In general 2 Admissibility of evidence 12 Arrest records 6 Conflicts of law 3

Double jeopardy 11 Food stamps 7 Forgery 8 Governmental records 4 Indictment and information 10 Instructions 14 Licenses 5 Sentence and punishment 15 Sufficiency of evidence 13 Validity 1 Voters 9 Waiver 16

1. Validity Statute prohibiting tampering with governmental records was not unconstitutionally vague as applied to defendants, a county sheriff and his wife, who allegedly destroyed records relating to county jail commissary; persons of ordinary intelligence in defendants' positions would have known that receipts or vouchers submitted to commissary fund for reimbursements were received by or kept by government for information. Mills v. State (App. 13 Dist. 1996) 941 S.W.2d 204, petition for discretionary review refused. Constitutional Law 258(3.1); Records 22 2. In general The written answers of applicants for teachers' certificates to questions asked on examination, which had to be forwarded to the state superintendent of education and kept by him until delivered to the state board of examiners for grading, were papers required by law to be kept by a state officer, so that their malicious destruction was a felony; after the answers of applicants for teachers' certificates to the examination questions had been delivered to an employe of the state superintendent, they were thereafter in his keeping, so that one who procured them from the express company, by which they were shipped to the state superintendent, and destroyed them, was guilty of destroying documents in the keeping of a public officer. Smith v. State (Cr.App. 1920) 87 Tex.Crim. 219, 220 S.W. 552. Records 22 Cashbook could not be styled "public record," within Vernon's Ann.P.C. (1925) art. 1002 (now, this section) until something had been recorded therein by some one authorized to do so. Nogueira v. State (Cr.App. 1933) 123 Tex.Crim. 449, 59 S.W.2d

831. Records

22

False entry in new cashbook intended to be part of county books of account was not "mutilation, destruction, defacing, or altering of public record" within Vernon's Ann.P.C. (1925) art. 1002 (now, this section). Nogueira v. State (Cr.App. 1933) 123 Tex.Crim. 449, 59 S.W.2d 831. Records 22 Statute generally prohibiting tampering with governmental records and more specific statute requiring motor vehicle salvage dealer to keep inventory log are not in pari materia, and thus employee of auto accessories store could be charged under former statute for allegedly tampering with such an inventory log; statutes cover different persons, purposes and subject matters. State v. Kinkle (App. 14 Dist. 1995) 902 S.W.2d 187. Automobiles 324; Records 22; Statutes 223.2(35) Statute generally prohibiting tampering with governmental records is not in irreconcilable conflict with more specific statute requiring motor vehicle salvage dealer to keep inventory log, and thus employee of auto accessories store could be charged under former statute for allegedly tampering with such an inventory log, since former statute requires that defendant act intentionally and knowingly with intent to defraud and harm another, while latter statute is strict liability offense. State v. Kinkle (App. 14 Dist. 1995) 902 S.W.2d 187. Automobiles 324; Records 22; Statutes 223.4 Statute prohibiting tampering with governmental records and statute prohibiting issuing an inspection certificate without conducting required inspections are not in pari materia; the two statutes address different conduct, issuing an inspection certificate after performing an improper inspection as opposed to issuing a false governmental record in exchange for money. Alonso v. State (App. 5 Dist. 2002) 2002 WL 31411043, Unreported. Statutes 223.2(35) 3. Conflicts of law Statute making it an offense to tamper with a governmental record and statute governing issuance of temporary license tags by licensed car dealers and manufacturers of motor vehicles were not in pari materia, whereby the more specific statute would control over the more general, where statutes did not address the same general subject, have the same general purpose, or relate to the same class of persons or things. Martinez v. State (App. 13 Dist. 1999) 6 S.W.3d 674. Statutes 223.2(35); Statutes 223.4 4. Governmental records Contractor's estimates which contractor was required to submit to university as prerequisite to being paid were not "government records" when false entries were made, before documents were submitted, and contractor and its president thus could not be convicted of making false entry in governmental record based upon such entries. Constructors Unlimited Inc. v. State (App. 1 Dist. 1986) 717 S.W.2d 169, petition for discretionary review refused. Fraud 68.10(1) Act of justice of peace in placing false statement in arrest warrant was violation of this section, despite justice's argument that he typed false entry of warrant before he signed it in his official capacity, and thus, warrant was not "government record" at time false entry was actually placed in warrant; justice's actions constituted single, simultaneous transaction in which he both created

government record and inserted false entry in record. Lewis v. State (App. 13 Dist. 1989) 773 S.W.2d 689, petition for discretionary review refused. Records

22

Questionnaire affidavits for foreclosure under statutory storage-mechanics' lien were not "government records" when defendants made false entries thereon and, thus, defendants could not be convicted of tampering with government records, although Department of Highway and Public Transportation had statutory authorization to prescribe the forms, where lien foreclosure affidavits were never filed, delivered, or received by any governmental entity, including the Department, and forms were not serialized, numbered, or registered and users of forms were not required to get their supply from the state but could have forms printed on copy machine. Pokladnik v. State (App. 5 Dist. 1994) 876 S.W.2d 525. Records 22 Expense vouchers and fake gasoline receipts defendant, a county sheriff, allegedly used to obtain reimbursement for travel in connection with purchase of jail commissary supplies were "governmental records" within meaning of statute prohibiting tampering with governmental records; although defendant may have had exclusive control of commissary funds and some discretion on how those funds were spent, commissary proceeds were subject to county oversight and could be spent only for limited purposes associated with jail operation. Mills v. State (App. 13 Dist. 1996) 941 S.W.2d 204, petition for discretionary review refused. Records 22 Once a temporary cardboard buyer's tag, with all the requisite information filled in, has been issued to a buyer of a motor vehicle, it thereafter constitutes a "governmental record," within meaning of statute making it an offense to tamper with a governmental record, because it is required by law to be kept by others for information of government, namely the buyer, until vehicle is registered. Martinez v. State (App. 13 Dist. 1999) 6 S.W.3d 674. Records 22 Temporary cardboard buyer's tag does not qualify as a governmental record "issued by government" such that tampering with it amounts to a second-degree or thirddegree felony. Martinez v. State (App. 13 Dist. 1999) 6 S.W.3d 674. Records 22 Attorney's petition for expunction of charge against client for delivery of marijuana was not "governmental record" within meaning of statute penalizing tampering with government record. State v. Vasilas (App. 5 Dist. 2005) 153 S.W.3d 725, petition for discretionary review granted, reversed 187 S.W.3d 486. Records 22 Defense attorney's petition for expunction of charge against client for delivery of marijuana was a "governmental record" within meaning of statute penalizing tampering with governmental record; legislature's decision to name a court record as an example of a governmental record in statute setting forth definition of governmental record did not narrow what qualified as a governmental record, and including pleadings filed with a court in definition of governmental record did not lead to an absurd result. State v. Vasilas (Cr.App. 2006) 187 S.W.3d 486. Records 22 Records created or received by the governor's office in carrying out its statutory duties fall within the definition of "public records" in section 441.031(5) of the Government Code and the definition of "public records" in section 2(2) of article 6252-17a, V.T.C.S.; such records also constitute "governmental records" within the meaning of sections 37.01(1)(A) and 37.10(a)(3) of the Penal Code. Op.Atty.Gen.1989, No. JM-1013. Temporary permits containing the language "Texas Department of Public Safety Temporary Permit" and depicting a graphic of a state seal were governmental record

forms that were issued by government, for purposes of the Penal Code provision criminalizing any act of possessing, selling, or offering to sell a governmental record or a blank governmental record form with intent that it be used unlawfully. Haywood v. State (App. 1 Dist. 2003) 2003 WL 1848621, Unreported. Records 22 Police offense report prepared by defendant was a "government record" within meaning of statute prohibiting tampering with government records, where defendant prepared the report as part of his official governmental duties as a peace officer, and the report containing the false entry was stored in a criminal justice computer database. Magee v. State (App. 1 Dist. 2003) 2003 WL 22862644, Unreported. Records 22

5. Licenses Statute governing the issuance of license plates and temporary tags by a licensed car dealer or manufacturer of motor vehicles was inapplicable to defendant, who was neither a licensed dealer nor a manufacturer at time he altered temporary tags on automobile he sold, in prosecution for tampering with a governmental record. Martinez v. State (App. 13 Dist. 1999) 6 S.W.3d 674. Automobiles 41 6. Arrest records Subject to judicial order and to the public's rights under the Open Records Act (Vernon's Ann.Civ.St. art. 6252-17a), a record of a person's arrest may be destroyed pursuant to the same authority by which it is maintained. Op.Atty.Gen.1976, No. H-808. 7. Food stamps While food stamps may be subject of both � 33.011, dealing with illegal possession, transfer and use of food stamps, and � 37.10, governing tampering with governmental records, food stamps are subjects of different acts having different objects, intended to cover different situations and which were apparently not intended to be considered together and thus, statutes did not prohibit same conduct, and statutes are not in pari materia for purpose of more specific statutes controlling over more general. McMillan v. State (App. 5 Dist. 1984) 696 S.W.2d 584. Statutes 223.2(35) Evidence was sufficient to show that defendant intended to defraud and harm when she failed to disclose her husband's employment and income on application for Medicaid and food stamps and on later application for food stamps, so as to support convictions for tampering with a governmental record; defendant, who had filed for assistance in the past, had knowledge of husband's employment and income, and if defendant had disclosed that information, she would have been ineligible for Medicaid and would have received substantially reduced amount of food stamps. Christmann v. State (App. 8 Dist. 2005) 2005 WL 3214832, Unreported. Agriculture 2.6(5); Health 989; Records 22 Evidence was sufficient to show that defendant knowingly made false entry on application for Medicaid and food stamps and on later application for food stamps, so as to support convictions for tampering with a governmental record;

applications asked defendant to list all household income, defendant failed to disclose on first application that her husband received income from employer and instead restricted her answer to husband's $120 income from self-employment, and defendant failed to disclose on second application that husband received income from two employers. Christmann v. State (App. 8 Dist. 2005) 2005 WL 3214832, Unreported. Agriculture 2.6(5); Health 989; Records 22 One who fraudulently obtains food stamps by falsely stating his income to qualify for food stamp benefits may be prosecuted under the Texas theft statute (� 31.03) with the owner designated as the United States Government, the State of Texas, or the Texas Department of Human Resources, or preferably an individual employee whose responsibilities give him managerial control over the food stamps themselves, and the state may also prosecute for tampering with a governmental record and securing execution of a document by deception, depending on how the food stamps were obtained; the specificity of any of the three applicable statutes would not bar prosecution under either of the remaining two since each offense contains an element which does not exist in the remaining two, so the state is not restricted to prosecuting one of the three offenses assuming the facts satisfy all of the statutory elements. Op.Atty.Gen.1983, No. MW-582. 8. Forgery The legislature, by the subsequent enactment of Vernon's Ann.P.C. (1925) art. 1007 (see, now � 32.21), intended that such statute be an exception to Vernon's Ann.P.C. (1925) art. 360 (now, this section), and that from and after its enactment, the act of making a false certificate to an instrument affecting or relating to the title of lands be an offense under Vernon's Ann. P.C. (1925) art. 1007 (see, now � 32.21), rather than under Vernon's Ann.P.C. (1925) art. 360 (now, this section). Sheffield v. State (Cr.App. 1957) 165 Tex.Crim. 354, 307 S.W.2d 100. Even if jury found defendant's secretary who faxed fraudulent certificate of insurance to Texas Natural Resources Conservation Commission (TNRCC) at defendant's request to be accomplice witness, there was sufficient corroborating evidence connecting defendant with commission of felony tampering with governmental record to support convictions; defendant, as company president, was in charge of procuring insurance coverage, insurer had dealt primarily with defendant on past matters, fraudulent certificate was created from previous policy created for defendant, and defendant never responded to insurer's request to investigate fraudulent certificate. Elliott v. State (App. 3 Dist. 1998) 976 S.W.2d 355, petition for discretionary review refused. Criminal Law 511.1(6.1) 9. Voters A person who knowingly makes a false entry on a voter registration application commits an offense under this section, and a person who is unqualified to vote commits an offense by voting or attempting to vote in an election in which the person knows he is ineligible to vote. Op.Atty.Gen.1986, No. JM-611. 10. Indictment and information In order to state offense of tampering with governmental records, it was not

necessary for indictment to allege from whom defendant withheld tax receipt, and where receipt on its face showed that it was to be sent to Comptroller's office, defendant was given sufficient notice that receipt was withheld from Comptroller's office. Perez v. State (Cr.App. 1979) 590 S.W.2d 474, certiorari denied 100 S.Ct. 2157, 446 U.S. 937, 64 L.Ed.2d 790. Indictment And Information 71.4(1) Defendant was properly charged with offense of tampering with governmental record where indictment alleged that she "knowingly and intelligently" caused another person to make false entry in government record with intention to defraud; it was not necessary for indictment to allege that she was criminally responsible for act of another. McMillan v. State (App. 5 Dist. 1984) 696 S.W.2d 584. Fraud 69(2) Defendant was not sufficiently notified of particular wrong with which he was charged and such insufficiency had substantial impact upon defendant's ability to prepare defense, where 33 counts of presenting false documents to government were charged in 17 indictments, which contained statutory recitation of tampering with governmental records offense and to which were attached numerous documents, including balance sheets, income tax returns, and affidavits, without specification of what entry therein was alleged to be false; defendant learned for first time what prosecutor alleged as false as each document was introduced at trial. Cook v. State (App. 1 Dist. 1992) 824 S.W.2d 334, petition for discretionary review refused. Fraud 69(2) To afford defendant sufficient notice of offense of tampering with governmental records, charging instrument should allege essential elements of offense and identity of false entry. Cook v. State (App. 1 Dist. 1992) 824 S.W.2d 334, petition for discretionary review refused. Records 22 In the absence of objection to indictments or jury charge, charge on felony tampering with governmental records properly allowed jury to convict defendants of offenses as felonies if jury found they acted with intent to defraud or harm "another," although underlying indictments only alleged that defendants acted with "intent to defraud and to harm," which is the language of the misdemeanor offense. Mills v. State (App. 13 Dist. 1996) 941 S.W.2d 204, petition for discretionary review refused. Indictment And Information 159(2) Indictment tracking language of statute criminalizing tampering with a governmental record sufficiently accused defendant of that offense and thus was not void even if indictment included factual allegations that arguably evidenced defendant's innocence. Kendall v. State (App. 5 Dist. 1998) 997 S.W.2d 630, review denied. Indictment And Information 110(3) Defendant was properly charged with felony criminal offense of tampering with governmental record, where document allegedly tampered with was social security card issued by United States government, in light of fact that statute specified that offense was felony where document was issued by United States government. Lopez v. State (App. 1 Dist. 2000) 25 S.W.3d 926, rehearing overruled. Records 22 11. Double jeopardy Conviction of defendant on two counts of felony tampering with a governmental record, based upon his altering of one certificate of insurance to show two types of required coverage, did not violate double jeopardy clause of State Constitution; automobile liability insurance and pollution liability insurance were listed as separate requirements under applicable Texas Natural Resources Conservation Commission (TNRCC) regulations, and thus falsified evidence of each

constituted separate offenses requiring proof of separate matters. Elliott v. State (App. 3 Dist. 1998) 976 S.W.2d 355, petition for discretionary review refused. Double Jeopardy 139.1 Defendant's convictions for both issuing an inspection certificate without conducting required inspections and tampering with governmental records were not barred by double jeopardy; each offense required proof of an additional fact that the other did not. Alonso v. State (App. 5 Dist. 2002) 2002 WL 31411057, Unreported. Double Jeopardy 139.1 12. Admissibility of evidence For purposes of prosecution for tampering with governmental records, alleged knowledge of county and state officials that tax receipts were being withheld did not tend to prove defendant's innocence and was not relevant to any other issue at trial, and any probative value of evidence of such alleged knowledge would have been outweighed by confusion evidence would have caused jury, and thus trial court did not abuse its discretion in ruling evidence inadmissible. Perez v. State (Cr.App. 1979) 590 S.W.2d 474, certiorari denied 100 S.Ct. 2157, 446 U.S. 937, 64 L.Ed.2d 790. Criminal Law 338(1) 13. Sufficiency of evidence There was sufficient evidence to establish that there was a debt, lien or encumbrance on property, as to which defendant filed a required affidavit stating that he owned the property free and clear so that bonds could be written based upon the value of the land, to sustain defendant's conviction for tampering with a governmental record. Stringer v. State (Cr.App. 1982) 632 S.W.2d 340. Records 22 Sufficient direct evidence and adequately juxtaposed circumstantial evidence equivalent to direct proof was presented to sustain, by more than mere suspicion or probability, determination that defendant participated in removal and/or destruction of government record without authorization warranting revocation of probation, where witnesses testified that they had seen defendant with manila folder, which was stamped "confidential," which he later destroyed and threw into dumpster. LaBelle v. State (App. 8 Dist. 1987) 726 S.W.2d 248. Sentencing And Punishment 2021 Evidence was sufficient to establish that defendant, a county sheriff, did not have authorization to destroy jail commissary ledger, as required to support conviction for tampering with governmental records; although defendant had sole control of funds in commissary, he had been told by auditor how to account for commissary fund, and such funds were subject to audit by the auditor. Mills v. State (App. 13 Dist. 1996) 941 S.W.2d 204, petition for discretionary review refused. Records 22 Evidence that defendant, a county sheriff, submitted falsified fuel receipt to auditor for reimbursement and had manipulated books of jail commissary, and that codefendant, sheriff's wife, made false receipt knowing that receipts were being submitted for reimbursement, was sufficient to support convictions for tampering with governmental records. Mills v. State (App. 13 Dist. 1996) 941 S.W.2d 204, petition for discretionary review refused. Records 22 There was sufficient evidence that defendant acted with the requisite intent to

defraud or harm car buyer, by altering temporary tag to prevent buyer from discovering car had no title, to support conviction for tampering with a governmental record; buyer testified that dealer from whom defendant took possession of car told buyer that defendant knew car did not have a title, and buyer testified that he observed defendant alter tag and that he made $1,200 in payments to defendant before learning car was stolen. Martinez v. State (App. 13 Dist. 1999) 6 S.W.3d 674. Records 22 Evidence that defendant used governmental record was sufficient to support conviction for tampering with governmental record by forging signatures on petition submitted to place defendant's name on election ballot, though forgeries occurred before petition was submitted, where petition was accepted by party chairperson and defendant subsequently relied on petition to maintain his position on ballot. Morales v. State (App. 8 Dist. 2000) 11 S.W.3d 460, petition for discretionary review refused. Records 22 Evidence was legally and factually sufficient to disprove defense that the false entry or false information on incident filed by defendant, a police officer, could have had no effect on government's purpose for requiring a governmental record, in prosecution for tampering with a governmental record; detective testified that purpose of filling out an incident report is to accurately document a specific event or action taken at the time, and thus, since defendant's incident report did not accurately document event, conclusion could have been made that it affected government's purposes for requiring the record. Wingo v. State (App. 4 Dist. 2004) 143 S.W.3d 178, petition for discretionary review granted, affirmed 189 S.W.3d 270, rehearing denied. Records 22 Evidence was legally and factually sufficient to support finding that defendant, a police officer, intended to defraud city police department by knowingly making a false entry in police incident report, as required to support conviction for tampering with a governmental record; evidence indicated that defendant acted improperly acted to collected to collect a debt, which was a civil dispute, that incident report did not reflect that defendant was involved in a civil dispute, that an officer could receive administration sanctions for getting involved in a civil dispute, and that defendant admitted that he decided to falsify incident report in order to justify his not having property receipt or release of property form. Wingo v. State (App. 4 Dist. 2004) 143 S.W.3d 178, petition for discretionary review granted, affirmed 189 S.W.3d 270, rehearing denied. Records 22 Evidence was legally insufficient to support trial court's implied finding that reasonably prudent employee in similar circumstances as city employee, who filed report with respect to superiors' conduct, would have believed that facts reported by city employee showed violation of law, and thus, city employee could not establish that city violated Whistleblower Act by terminating her employment as sanitarian; although city employee alleged that six citations she wrote involving food store were voided by manager, employee did not assert any facts showing that any city manager destroyed, removed, or defaced citations, and statute forbade destruction, removal, or impairment of verity of governmental record. City of Houston v. Cotton (App. 14 Dist. 2005) 2005 WL 646096, withdrawn and superseded 171 S.W.3d 541, review denied. Municipal Corporations 218(3) Evidence was legally insufficient to support trial court's implied finding that reasonably prudent employee in similar circumstances as city employee, who filed report with respect to superiors' conduct, would have believed that facts reported by city employee showed violation of law, and thus, city employee could not establish that city violated Whistleblower Act by terminating her employment as sanitarian; although city employee alleged that six citations she wrote involving

food store were voided by manager, employee did not assert any facts showing that any city manager destroyed, removed, or defaced citations, and statute forbade destruction, removal, or impairment of verity of governmental record. City of Houston v. Cotton (App. 14 Dist. 2005) 171 S.W.3d 541, review denied. Municipal Corporations 218(3) Evidence was factually sufficient to support defendant's conviction of tampering with a governmental record by misrepresenting her interest in automobile when filing application for food stamps; defendant claimed she was not responsible for making payments, but no evidence indicated that person with whom she allegedly shared joint-ownership of vehicle was making payments, and defendant signed at least two of the payment checks from her joint bank account. Johnson v. State (App. 14 Dist. 2003) 2003 WL 22143287, Unreported, petition for discretionary review refused. Agriculture 2.6(5) Evidence was legally sufficient to support defendant's conviction for tampering with a governmental record by misrepresenting her interest in automobile when filing application for food stamps; documentary evidence supported finding that defendant made payments on vehicle, defendant's bank records showed payment for $2000 on vehicle, evidence showed two checks drawn on defendant's account payable to financing company, and defendant had faxed a letter requesting a change of payment dates. Johnson v. State (App. 14 Dist. 2003) 2003 WL 22143287, Unreported, petition for discretionary review refused. Agriculture 2.6(5) Evidence was legally and factually sufficient to show that defendant, a police officer, harmed juvenile by tampering with police offense report and falsely charging juvenile for possession of drug paraphernalia, so as to support conviction for tampering with a government record; juvenile's school was informed of the charge and, unless expunged, the charged offense would remain on juvenile's record, and defendant's colleague testified that when he expressed his concern about the juvenile being falsely charged, defendant referred to juvenile using abusive and profane language. Magee v. State (App. 1 Dist. 2003) 2003 WL 22862644, Unreported. Records 22 Evidence was sufficient to support convictions of city administrator for tampering with governmental records; defendant, who controlled bidding process for work project in question, intentionally and knowingly falsified bids from two companies that were used as genuine record or document in bidding process, and defendant presented falsified bids to city finance director, as part of city's competitive bidding policy, in order to acquire checks to pay for work project and tendered falsified bids in response to city resident's Open Records request. Reyna v. State (App. 13 Dist. 2006) 2006 WL 20772, Unreported, petition for discretionary review dismissed as untimely filed. Records 22 14. Instructions In prosecution of county judge for altering a public record by erasing from minutes of meeting of commissioners' court recital that he had retired from courtroom and refused to act as chairman and other recitals showing election of another chairman, judge's charge for acquittal if jury entertained a reasonable doubt on question whether he believed he had right to correct minutes by making erasure should have been submitted, where charge submitting that issue embraced conditions more burdensome to judge than evidence warranted. Garlington v. State (Cr.App. 1937) 133 Tex.Crim. 218, 109 S.W.2d 752. Records 22 Evidence created issue for jury on whether secretary was accomplice to defendant,

the company president, in prosecution of defendant for felony tampering with governmental record; secretary testified that she saw defendant alter expired certificate of insurance, that she faxed copy of altered certificate to Texas Natural Resources Conservation Commission (TNRCC) at defendant's request, and that she knew what she was doing was wrong. Elliott v. State (App. 3 Dist. 1998) 976 S.W.2d 355, petition for discretionary review refused. Criminal Law 742(2) 15. Sentence and punishment Tampering with an order of the court for installment agreement did not fall within exception to state jail felony sentencing requirement for tampering with "a license, certificate, permit, seal, title, letter of patent, or similar document issued by government, by another state, or by the United States," and thus, sentence of three years imprisonment was illegal. Ex parte Burks (Cr.App. 2003) 2003 WL 1710844, Unreported. Perjury 41 Defendant was accurately advised, at time she pled guilty to tampering with a governmental record and was placed on deferred adjudication community supervision, that possible range of punishment for her offense was two to ten years' imprisonment, where indictment alleged intent to defraud or harm another, raising offense from Class A misdemeanor to state jail felony, and further alleged that at time of commission of offense defendant was acting as public servant, adjusting level of punishment to third-degree felony offense. Garrett v. State (App. 6 Dist. 2003) 2003 WL 77107, Unreported. Criminal Law 273.1(4) 16. Waiver For purposes of appellate review, defendant waived claim that doctrine of in pari materia required that he be charged under transportation code for delivery or manufacture of counterfeit instrument, rather than under penal code for tampering with a government record, where defendant failed to object to substance of indictment on this basis. Bianchi v. State (App. 1 Dist. 2004) 2004 WL 549565, Unreported, petition for discretionary review refused. Criminal Law 1032(5) V. T. C. A., Penal Code � 37.10, TX PENAL � 37.10 Current through the end of the 2006 3rd Called Session of the 79th Legislature. � 2006 Thomson/West END OF DOCUMENT (C) 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.

(a) A public servant acting under color of his office or employment commits an offense if he: (1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful; (2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful; or

(3) intentionally subjects another to sexual harassment. (b) For purposes of this section, a public servant acts under color of his office or employment if he acts or purports to act in an official capacity or takes advantage of such actual or purported capacity. (c) In this section, "sexual harassment" means unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, submission to which is made a term or condition of a person's exercise or enjoyment of any right, privilege, power, or immunity, either explicitly or implicitly. (d) An offense under this section is a Class A misdemeanor. CREDIT(S) Acts 1973, 63rd Leg., p. 883, ch. 399, � 1, eff. Jan. 1, 1974. Amended by Acts 1989, 71st Leg., ch. 1217, � 1, eff. Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 16, � 19.01(34), eff. Aug. 26, 1991. Renumbered from V.T.C.A., Penal Code � 39.02 by Acts 1993, 73rd Leg., ch. 900, � 1.01, eff. Sept. 1, 1994. HISTORICAL AND STATUTORY NOTES 2003 Main Volume The 1989 amendment inserted subd. (a)(3), and added subsec. (c). The 1991 amendment relettered subsec. (c), as added by Acts 1973, 63rd Leg., ch. 399, � 1, as subsec. (d). The 1993 amendment, which amended the whole Penal Code, made no apparent change to this section. Prior Laws: Rev.P.C.1879, arts. 164, 519, 520. Rev.P.C.1895, arts. 170, 624, 625. Rev.P.C.1911, arts. 270, 1045, 1046, 1610, 1617. Vernon's Ann.P.C. (1925) arts. 261, 349, 353, 1157, 1158, 1175, 1176. Former Sections: A former � 39.03 was renumbered as V.T.C.A., Penal Code � 39.06 by Acts 1993, 73rd Leg., ch. 900, � 1.01, eff. Sept. 1, 1994. CROSS REFERENCES

"Another" defined, see V.T.C.A., Penal Code � 1.07. "Intentionally" defined, see V.T.C.A., Penal Code � 6.03. Public duty justification, see V.T.C.A., Penal Code � 9.21. "Public servant" defined, see V.T.C.A., Penal Code � 1.07. Punishment, Class A misdemeanor, see V.T.C.A., Penal Code � 12.21. "Unlawful" defined, see V.T.C.A., Penal Code � 1.07. LIBRARY REFERENCES 2003 Main Volume Officers and Public Employees 121. Westlaw Topic No. 283. C.J.S. Officers and Public Employees �� 255 to 259. RESEARCH REFERENCES 2006 Electronic Pocket Part Update ALR Library 83 ALR 2nd 1007, What Constitutes Offense of Official Oppression. Encyclopedias TX Jur. 3d Criminal Law � 1281, Acting Under Color of Office or Employment. TX Jur. 3d Criminal Law � 1282, Sexual Harassment. TX Jur. 3d Criminal Law � 1284, State of Mind. TX Jur. 3d Criminal Law � 1285, Violating Civil Rights of Person in Custody. TX Jur. 3d Criminal Law � 1643, Prosecution's Duty to Disclose Evidence. TX Jur. 3d Criminal Law � 1838, Same Act or Transaction. TX Jur. 3d Criminal Law � 2112, What Constitutes Official Misconduct or Oppression for Purposes of District Court Jurisdiction. TX Jur. 3d Police, Sheriffs, & Constables � 51, Suspension or Removal. TX Jur. 3d Public Officers & Employees � 111, Reports of Violations. Treatises and Practice Aids Emp. Discrim. Coord. Analysis of State Law � 48:2, Survey of Statutory Prohibited Bases.

Emp. Discrim. Coord. Analysis of State Law � 48:29, Application of Discrimination Laws. Emp. Discrim. Coord. Analysis of State Law � 48:31, Public Employers. Emp. Discrim. Coord. Analysis of State Law � 48:44, Public Servant Sexual Harassment Law. Emp. Discrim. Coord. Analysis of State Law � 48:62, Freedom from Sexual Harassment. Emp. Discrim. Coord. Analysis of State Law � 48:77, Criminal Penalties. Brooks, 22 Tex. Prac. Series � 3.11, Official Misconduct. Brooks, 35 Tex. Prac. Series � 7.19, Criminal Official Misconduct. Dix and Dawson, 40 Tex. Prac. Series � 1.24, Misdemeanors Involving Official Misconduct -- Eligible Conduct. Dix and Dawson, 41 Tex. Prac. Series � 20.113, Allegation of a Matter as "Known" Also Constitutes an Allegation of the Matter Itself. Dix and Dawson, 41 Tex. Prac. Series � 20.228, Allegation in Terms of Statutory Definition of "Manner or Means" is Sufficient. Dix and Dawson, 41 Tex. Prac. Series � 20.283, Statutory Language as Sufficient. NOTES OF DECISIONS In general 3 Admissibility of evidence 13 Construction and application 2 Denial of right 8, 9 Denial of right - In general 8 Denial of right - Right to counsel 9 Double jeopardy 11 False or misleading testimony 13.5 Indictment and information 12 Instructions 15 Jurisdiction 10 Mistreatment 5 Official capacity 7

Right to counsel, denial of right 9 Sentence and punishment 16 Sufficiency of evidence 14 Unlawful arrest or detention 4 Unwelcome conduct 6 Validity 1

1. Validity Rev.P.C.1911, art. 1617 (now, this section) which related to unauthorized punishment of prisoner, was valid. Hughes v. State (Cr.App. 1918) 83 Tex.Crim. 550, 204 S.W. 640. This section defining offense of official oppression is not void for vagueness or overbreadth. Zuniga v. State (App. 13 Dist. 1983) 664 S.W.2d 366. Extortion And Threats 1 This section which prohibited mistreatment of citizens by public servants was not unconstitutionally vague; this section proscribed only "unlawful" mistreatment, defined as conduct which was criminal or tortious or both. Prevo v. State (App. 13 Dist. 1989) 778 S.W.2d 520, petition for discretionary review refused. Officers And Public Employees 121 Conduct requirement of official oppression statute's sexual harassment elements supported conclusion that statute was void for vagueness under due process clause, in light of uncertain meaning and inherent vagueness of many terms in definition, statute's failure to specify whose sensitivities must be offended, and statute's failure to include reasonable person standard. Sanchez v. State (App. 4 Dist. 1998) 974 S.W.2d 307, petition for discretionary review granted, reversed 995 S.W.2d 677, certiorari denied 120 S.Ct. 531, 528 U.S. 1021, 145 L.Ed.2d 411, on remand 32 S.W.3d 687, rehearing overruled. Constitutional Law 258(5); Officers And Public Employees 121 Sexual harassment provision of official oppression statute proscribing intentional, "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature," was not unconstitutionally vague on its face under due process clause; phrase, modified by required culpable mental state, reasonably informed citizens of proscribed conduct and provided adequate guidelines for enforcement. Sanchez v. State (Cr.App. 1999) 995 S.W.2d 677, certiorari denied 120 S.Ct. 531, 528 U.S. 1021, 145 L.Ed.2d 411, on remand 32 S.W.3d 687, rehearing overruled, petition for discretionary review granted. Constitutional Law 258(5); Officers And Public Employees 120.1 Sexual harassment, under official oppression statute prohibiting intentional, unwelcome sexual conduct by public servant, submission to which was intended as term or condition of person's enjoyment of something of value, was not protected speech under First Amendment. Sanchez v. State (Cr.App. 1999) 995 S.W.2d 677, certiorari denied 120 S.Ct. 531, 528 U.S. 1021, 145 L.Ed.2d 411, on remand 32 S.W.3d 687, rehearing overruled, petition for discretionary review granted.

Constitutional Law

90.1(1); Officers And Public Employees

121

2. Construction and application Term "another," within meaning of this section, includes both private individual or employee of public servant's office. Bryson v. State (Cr.App. 1991) 807 S.W.2d 742, on remand 820 S.W.2d 197. Extortion And Threats 4 Official oppression statute, defining sexual harassment as public servant's intentional sexual conduct, submission to which was intended to be term or condition of person's exercise of right, privilege, power, or immunity, applied to victim's exercise or enjoyment or to third party's exercise or enjoyment of right, privilege, power, or immunity. Sanchez v. State (Cr.App. 1999) 995 S.W.2d 677, certiorari denied 120 S.Ct. 531, 528 U.S. 1021, 145 L.Ed.2d 411, on remand 32 S.W.3d 687, rehearing overruled, petition for discretionary review granted. Officers And Public Employees 121 Under official oppression statute, the allowable unit of prosecution consists of the commission of the underlying act. Haight v. State (App. 4 Dist. 2003) 103 S.W.3d 498, petition for discretionary review granted, petition for discretionary review refused, reversed 137 S.W.3d 48. Extortion And Threats 4 3. In general "False arrest" is unlawful restraint of an individual by another individual, while "official oppression" encompasses different types of misconduct which may comprise the offense, and may be committed only by a public servant acting under color of his office or employment. Zuniga v. State (App. 13 Dist. 1983) 664 S.W.2d 366. Extortion And Threats 1; False Imprisonment 43 4. Unlawful arrest or detention Constable unlawfully arrested bar's security guard for disorderly conduct and, therefore, committed official oppression; guard asked constable to remove his gun from counter and, according to constable, waved his arms at constable. Tovar v. State (App. 13 Dist. 1989) 777 S.W.2d 481, petition for discretionary review refused. Extortion And Threats 4 Constable unlawfully arrested bar's uniformed security guard for impersonating police officer and, therefore, committed official oppression; guard merely asked constable to retrieve his gun from counter, did not represent himself to constable as public servant or police officer, and did not induce constable to submit to any pretended official authority or to rely on any pretended official acts. Tovar v. State (App. 13 Dist. 1989) 777 S.W.2d 481, petition for discretionary review refused. Extortion And Threats 4 Constable unlawfully arrested bar's uniformed security guard for impersonating police officer and, therefore, committed official oppression; guard merely asked constable to retrieve his gun from counter, did not represent himself to constable as public servant or police officer, and did not induce constable to submit to any pretended official authority or to rely on any pretended official acts. Tovar v. State (App. 13 Dist. 1989) 777 S.W.2d 481, petition for discretionary review

refused. Extortion And Threats

4

5. Mistreatment In a prosecution for murder, in view of the enactment of Vernon's Ann.P.C. (1925) art. 1157 (now, this section), mistreatment of accused from whom confession was obtained might consist of acts or conduct not constituting actual physical violence. Abston v. State (Cr.App. 1937) 132 Tex.Crim. 130, 102 S.W.2d 428 Defendant's knowledge that mistreatment is unlawful is element of offense of official oppression by mistreatment of another; intentional mistreatment, by itself, is not criminal. State v. Edmond (Cr.App. 1996) 933 S.W.2d 120. Extortion And Threats 4 6. Unwelcome conduct Under provision of official oppression statute defining sexual harassment as "unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature," all forms of sexual harassment must involve "unwelcome" conduct. Sanchez v. State (Cr.App. 1999) 995 S.W.2d 677, certiorari denied 120 S.Ct. 531, 528 U.S. 1021, 145 L.Ed.2d 411, on remand 32 S.W.3d 687, rehearing overruled, petition for discretionary review granted. Officers And Public Employees 121 7. Official capacity Mayor who used badge to gain entry to nightclub, and who was thus mistaken for vice officer, was not guilty of official oppression under statute proscribing illegal actions under color of public servant's officer or employment, where there was no authority for mayor of city to have a badge and there was no evidence complainant thought he was acting under his authority as mayor. Blasingame v. State (App. 14 Dist. 1986) 706 S.W.2d 682, petition for discretionary review refused. Municipal Corporations 174 Official oppression statute (this section) applies only to public servants acting under color of their own offices or employments. Blasingame v. State (App. 14 Dist. 1986) 706 S.W.2d 682, petition for discretionary review refused. Officers And Public Employees 121 Police chief acted "under color of office," for purposes of this section, when he placed his hand on female subordinate's buttocks and persistently engaged in other sexual mistreatment of subordinate; his position as police chief was not incidental to his harassment of subordinate but, rather, was means to accomplishing that harassment without fear of rejection. Bryson v. State (Cr.App. 1991) 807 S.W.2d 742, on remand 820 S.W.2d 197. Extortion And Threats 6 8. Denial of right--In general Refusal of arresting officer to permit defendant charged with driving while intoxicated to use telephone until he allegedly had "sobered up" about four hours

after arriving at jail did not constitute denial of opportunity to defendant to be examined by competent and disinterested persons as to whether he was intoxicated at time of arrest, in absence of offer of any statement made by him after accident leading to arrest and in absence of body specimen, request for and denial thereof, or interrogation for and denial thereof, or interrogation of defendant after arrest. Parker v. State (Cr.App. 1965) 397 S.W.2d 853. Arrest 70(1) 9. ---- Right to counsel, denial of right Const. Art. 1, � 10, guarantees the right of counsel, and this makes it a penal offense for an officer having charge of a prisoner to willfully prevent consultation and communication with his counsel, and the refusal by officers in charge of a prisoner to let him see counsel is an adequate reason for reversal in a proper case. Nothaf v. State (Cr.App. 1922) 91 Tex.Crim. 378, 239 S.W. 215. Criminal Law 641(1) To deny defendant the privilege of advice of counsel in the preparation of his case for trial was an unwarranted abridgment of right guaranteed by Constitution, Bill of Rights, to be heard by counsel, and Rev.P.C.1911, art. 1046 (now, this section) making it a crime for any official to willfully prevent a prisoner from consulting or communicating with his counsel, and refusal to permit defendants to communicate with their counsel except in sheriff's presence violated defendants' constitutional rights. Turner v. State (Cr.App. 1922) 91 Tex.Crim. 627, 241 S.W. 162. Criminal Law 641(1) Notwithstanding constitutional guarantees to right of counsel and Vernon's Ann.P.C. (1925) art. 1176 (now, this section) which made it penal offense for officer to prevent accused from consulting with counsel, sheriff had right to exercise discretion and caution in admitting attorneys to jail to see their clients. Parker v. State (Cr.App. 1965) 397 S.W.2d 853. Criminal Law 641.12(2) 10. Jurisdiction Absent motion to quash, failure to allege facts that give rise to conclusion of unlawfulness of mistreatment of citizen by public official is not fatal in prosecution of official under this section; allegation of unlawfulness is sufficient to invest court with jurisdiction through inclusion of elements of crime within indictment. Prevo v. State (App. 13 Dist. 1989) 778 S.W.2d 520, petition for discretionary review refused. Officers And Public Employees 122 11. Double jeopardy Defendant's convictions for violating an inmate's civil rights and official oppression did not violate the double jeopardy clause; the civil rights violation required the state to prove that defendant struck a person in custody, while the oppression offense did not, and the official oppression violation required the State to prove that defendant was acting under the color of his office or employment while the civil rights violation did not. Mizell v. State (App. 4 Dist. 2001) 70 S.W.3d 156, rehearing overruled, petition for discretionary review granted, affirmed 119 S.W.3d 804. Double Jeopardy 139.1 Separate convictions for official oppression by unlawful mistreatment and official

oppression by unlawful arrest that arose from same transaction did not violate prohibition against double jeopardy; unlawful oppression statute was conductoriented and criminalized several types of conduct, each of which would cause different type of harm. Haight v. State (Cr.App. 2004) 137 S.W.3d 48. Double Jeopardy 139.1 12. Indictment and information Information which charged offense of official oppression was not inadequate, although each count did not allege that defendant was acting in an official capacity. Rendon v. State (App. 13 Dist. 1984) 695 S.W.2d 1, petition for discretionary review refused. Extortion And Threats 13 Indictment adequately alleged that mistreatment of citizen by sheriff's deputy was unlawful for purposes of prosecution of deputy under this section; by alleging that deputy knew his conduct was unlawful, indictment properly averred that treatment was unlawful. Prevo v. State (App. 13 Dist. 1989) 778 S.W.2d 520, petition for discretionary review refused. Officers And Public Employees 122 Indictment which alleged that sheriff's deputy was acting under color of his office or employment when he mistreated citizen did not require proof of how he took advantage of his official capacity; indictment adequately tracked language of each essential element of official oppression as set forth in this section. Prevo v. State (App. 13 Dist. 1989) 778 S.W.2d 520, petition for discretionary review refused. Indictment And Information 110(3) Paragraph of official oppression indictment of police officer which alleged that he intentionally subjected complaining witness to mistreatment was defective, because it failed to allege that the mistreatment was unlawful or that the police officer knew the mistreatment was unlawful. State v. Edmond (App. 2 Dist. 1995) 903 S.W.2d 856, petition for discretionary review granted, affirmed in part, reversed in part 933 S.W.2d 120. Extortion And Threats 13 Indictment of police officer for official oppression based on allegations of making unwelcome sexual advances or making request for sexual favors did not fairly or adequately notify him of specific acts that formed basis of accusation against which he had to defend himself, as they were not completely descriptive of purported acts constituting offense. State v. Edmond (App. 2 Dist. 1995) 903 S.W.2d 856, petition for discretionary review granted, affirmed in part, reversed in part 933 S.W.2d 120. Extortion And Threats 13 By alleging that defendant had knowledge that his conduct was unlawful, indictment charging official oppression properly alleges that relevant conduct actually was unlawful. State v. Edmond (Cr.App. 1996) 933 S.W.2d 120. Extortion And Threats 13 State was not required to describe or define "unwelcome sexual advances" or "request for sexual favors" in indictment charging police officer with official oppression by sexual harassment; fact that state utilized statutory definition of sexual harassment and conjunctively alleged two of three statutory acts or omissions constituting such offense provided officer proper level of notice to prepare his defense. State v. Edmond (Cr.App. 1996) 933 S.W.2d 120. Extortion And Threats 13 Indictment charging official oppression based on sexual harassment was deficient, in that it failed to allege culpable mental state of "knowing"; there was no allegation that defendant knew any conduct of a sexual nature in which he

intentionally engaged was not welcomed by the recipient. Sanchez v. State (App. 4 Dist. 2000) 32 S.W.3d 687, rehearing overruled, petition for discretionary review granted, vacated 120 S.W.3d 359, on remand 182 S.W.3d 34. Officers And Public Employees 122 Indictment charging official oppression based on sexual harassment was deficient, on ground it failed to allege element that defendant was in a position to either provide or withhold any right, privilege, power, or immunity to the victim. Sanchez v. State (App. 4 Dist. 2000) 32 S.W.3d 687, rehearing overruled, petition for discretionary review granted, vacated 120 S.W.3d 359, on remand 182 S.W.3d 34. Officers And Public Employees 122 Error was harmful in failing to quash indictment charging official oppression based on sexual harassment that was deficient for failing to allege culpable mental state of "knowing" and sufficient facts to establish those rights, privileges, powers, and immunities of victim that were withheld by defendant; as a result, jury panel was not voir dired on all the elements of the offense, the state's burden of proof was lessened, and the jury charge was flawed. Sanchez v. State (App. 4 Dist. 2000) 32 S.W.3d 687, rehearing overruled, petition for discretionary review granted, vacated 120 S.W.3d 359, on remand 182 S.W.3d 34. Criminal Law 1167(3) Erroneous failure of indictment for official oppression involving sexual harassment to inform defendant of complainant's "rights, privileges, powers, and immunities," the exercise of which defendant allegedly made conditional upon complainant's submission to sexual harassment, was prejudicial error; there was no explanation how any inference based on discovery should have been limited, investigation would not have obviated need for speculation, defense counsel could not question prospective jurors or give effective opening statement about the unspecified element, element was never specified during trial, and jurors were left to apply their own understanding of "rights, privileges, powers, and immunities" as it applied to the ten acts attributed to defendant and submitted to the jury in the disjunctive. Sanchez v. State (App. 4 Dist. 2005) 182 S.W.3d 34, petition for discretionary review granted. Officers And Public Employees 121 13. Admissibility of evidence Evidence that civilian tried to stop victim from leaving hotel room was admissible in prosecution of constable for official oppression; civilian's conduct in assisting constable was closely interwoven with constable's unlawful detention of victim. Tovar v. State (App. 13 Dist. 1989) 777 S.W.2d 481, petition for discretionary review refused. Criminal Law 369.2(3.1) In prosecution for official oppression, evidence that defendant had subjected employee other than victim to offensive remarks, sexual advances, touching, and requests for massage, was admissible to show that defendant's pinching incident with victim was not accidental or inadvertent, but rather was intentional act and took place as part of ongoing conscious plan or scheme of harassment. Bryson v. State (App. 13 Dist. 1991) 820 S.W.2d 197. Criminal Law 371(1); Criminal Law 372(14) In prosecution for official oppression, probative value of evidence that defendant had subjected employee other than victim to offensive remarks, sexual advances, touching, and requests for massage was not substantially outweighed by danger of unfair prejudice; evidence showed that defendant's actions were part of ongoing conscious plan or scheme of harassment. Bryson v. State (App. 13 Dist. 1991) 820

S.W.2d 197. Criminal Law

372(14)

Defendant's testimony on direct examination about how prior arrestee became informant for him opened the door to cross-examination about defendant's relationship with informant for purposes of prosecution on charge of official oppression allegedly occurring while defendant was police officer. Hughbank v. State (App. 2 Dist. 1998) 967 S.W.2d 940. Witnesses 277(4) 13.5. False or misleading testimony Alleged victim's testimony, in prosecution of defendant, a police officer, for official oppression, that she was not looking for money and that her contract with attorney was not "to get money," was "material," as required to entitle defendant to new trial based on state's use of false and misleading testimony; victim was essential witness linking defendant to acts of official oppression alleged in indictment, her false testimony was critical in evaluating witness's credibility in view of her questionable background, and judgment of jury could have been affected by state's use of false testimony. Ramirez v. State (App. 3 Dist. 2002) 96 S.W.3d 386, petition for discretionary review refused. Criminal Law 706(2) 14. Sufficiency of evidence Evidence was sufficient to sustain conviction of sheriff's deputy of official oppression of victim; evidence revealed that deputy arrived at victim's house in full uniform to execute arrest warrant, that he suggested that he be "compensated for his efforts" in taking care of arrest warrant, that deputy grabbed victim's hand and placed it on his penis and thereafter gave her $10, and that semen and hair samples found on victim's washcloths matched specimens taken from deputy. Prevo v. State (App. 13 Dist. 1989) 778 S.W.2d 520, petition for discretionary review refused. Officers And Public Employees 122 That earlier indictment indicated defendant would fire victim if she did not have an affair and that she would get an office, secretary, and a raise was insufficient to provide notice in amended indictment of those rights, privileges, powers, and immunities of victim that were withheld by defendant, as element of official oppression based on sexual harassment. Sanchez v. State (App. 4 Dist. 2000) 32 S.W.3d 687, rehearing overruled, petition for discretionary review granted, vacated 120 S.W.3d 359, on remand 182 S.W.3d 34. Officers And Public Employees 122 Evidence was legally and factually sufficient to support state trooper's conviction for official oppression in connection with arrest of motorist during traffic stop, where the circumstances of the arrest were extraordinary; multiple witnesses, including defendant's fellow officers, testified that defendant caused motorist's head to strike side of patrol car and that defendant kicked motorist in the back while he was handcuffed and on the ground, two dents were in the door, and motorist may have intended to sign citations before defendant took clipboard away from him and arrested him. Haight v. State (App. 4 Dist. 2003) 103 S.W.3d 498, petition for discretionary review granted, petition for discretionary review refused, reversed 137 S.W.3d 48. States 81 15. Instructions

In prosecution for "official oppression," charge to jury, although not perfect, was not fundamentally defective despite failure of court to use word "intentionally" in applying law to facts, where charge adequately required jury to consider defendant's "conscious objective," by considering whether defendant's conduct was knowing and unlawful, where neither facts of case nor defendant suggested that defendant's act was other than intentional, and where defendant made no objection to court's charge at trial and did not contend he was prejudiced by charge or deprived of fair trial. Emerson v. State (App. 1 Dist. 1983) 662 S.W.2d 92, petition for discretionary review granted, affirmed 727 S.W.2d 267. Criminal Law 1038.1(6) Unpreserved error in jury charge in prosecution for official oppression based on sexual harassment constituted fundamental error, due to possibility of a nonunanimous jury verdict; trial court submitted ten separate and distinct offenses disjunctively in one-count indictment, trial court instructed the jury that a conviction could be based on one unit of prosecution, complainant testified that the alleged acts occurred at different times, prosecutor improperly argued to jury that non-unanimous verdict was proper, there were no cautionary instructions to avoid a non-unanimous verdict, and only a general jury verdict of guilt was received. Sanchez v. State (App. 4 Dist. 2005) 182 S.W.3d 34, petition for discretionary review granted. Criminal Law 1038.1(3.1) Unpreserved error in jury charge in prosecution for official oppression based on sexual harassment, involving ten alleged acts of conduct submitted disjunctively, constituted fundamental error, where charge failed to properly instruct jury on all the essential elements of offense, such that it was possible that defendant was convicted for activity or conduct that was constitutionally protected. Sanchez v. State (App. 4 Dist. 2005) 182 S.W.3d 34, petition for discretionary review granted. Criminal Law 1038.1(4) 16. Sentence and punishment Trial court was required to impose a punishment with the statutory range after the jury found defendant guilty of official oppression; penal code required punishment of a fine, confinement in jail, or both, and the trial court did not impose any punishment against the defendant. Mizell v. State (App. 4 Dist. 2001) 70 S.W.3d 156, rehearing overruled, petition for discretionary review granted, affirmed 119 S.W.3d 804. Officers And Public Employees 122 V. T. C. A., Penal Code � 39.03, TX PENAL � 39.03 Current through the end of the 2006 3rd Called Session of the 79th Legislature. � 2006 Thomson/West END OF DOCUMENT (C) 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.

(a) A public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly: (1) violates a law relating to the public servant's office or employment; or

(2) misuses government property, services, personnel, or any other thing of value belonging to the government that has come into the public servant's custody or possession by virtue of the public servant's office or employment. (b) An offense under Subsection (a)(1) is a Class A misdemeanor. (c) An offense under Subsection (a)(2) is: (1) a Class C misdemeanor if the value of the use of the thing misused is less than $20; (2) a Class B misdemeanor if the value of the use of the thing misused is $20 or more but less than $500 ; (3) a Class A misdemeanor if the value of the use of the thing misused is $500 or more but less than $1,500; (4) a state jail felony if the value of the use of the thing misused is $1,500 or more but less than $20,000; (5) a felony of the third degree if the value of the use of the thing misused is $20,000 or more but less than $100,000; (6) a felony of the second degree if the value of the use of the thing misused is $100,000 or more but less than $200,000; or (7) a felony of the first degree if the value of the use of the thing misused is $200,000 or more. (d) A discount or award given for travel, such as frequent flyer miles, rental car or hotel discounts, or food coupons, are not things of value belonging to the government for purposes of this section due to the administrative difficulty and cost involved in recapturing the discount or award for a governmental entity. CREDIT(S) Acts 1973, 63rd Leg., p. 883, ch. 399, � 1, eff. Jan. 1, 1974. Amended by Acts 1983, 68th Leg., p. 3241, ch. 558, � 7, eff. Sept. 1, 1983. Renumbered from V.T.C.A., Penal Code � 39.01 and amended by Acts 1993, 73rd Leg., ch. 900, � 1.01, eff. Sept. 1, 1994. HISTORICAL AND STATUTORY NOTES 2003 Main Volume The 1983 amendment, in subsec. (a), in the introductory language, deleted "for himself" and inserted "with intent", deleted subds. (1), (2) and (3), renumbered former subds. (4) and (5) as (1) and (2), respectively, and in subd. (2) deleted "takes or" preceding "misapplies any thing", substituted "has" for "may have", inserted "office or", and deleted ", or secretes it with intent to take or misapply it, or pays or delivers it to any person knowing that such person is not entitled to receive it"; deleted former subsec. (b), relettered former subsec. (c)

as (b), added a new subsec. (c), and in subsec. (b), in the first sentence substituted "Subsection" for "Subsections", deleted "through (a)(4)" following "(a)(1)" and deleted the second sentence which read: "An offense under Subsection (a)(5) of this section is a felony of the third degree.". Prior to amendment, subsecs. (a)(1), (a)(2), (a)(3), and (b) read: "(a)(1) commits an act relating to his office or employment that constitutes an unauthorized exercise of his official power; "(2) commits an act under color of his office or employment that exceeds his official power; "(3) refrains from performing a duty that is imposed on him by law or that is clearly inherent in the nature of his office or employment;" "(b) For purposes of Subsection (a)(2) of this section, a public servant commits an act under color of his office or employment if he acts or purports to act in an official capacity or takes advantage of such actual or purported capacity."; � 12 of the 1983 amendatory act provides: "(a) The change in law made by this Act applies only to an offense committed on or after the effective date [Sept. 1, 1983] of this Act. For purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before the effective date. "(b) An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for this purpose." The 1993 amendment rewrote the section, which previously read: "Official Misconduct. (a) A public servant commits an offense if, with intent to obtain a benefit or with intent to harm another, he intentionally or knowingly: "(1) violates a law relating to his office or employment; or "(2) misapplies any thing of value belonging to the government that has come into his custody or possession by virtue of his office or employment. "(b) An offense under Subsection (a)(1) of this section is a Class A misdemeanor. "(c) An offense under Subsection (a)(2) of this section is: "(1) a Class C misdemeanor if the value of the use of the thing misapplied is less than $20; "(2) a Class B misdemeanor if the value of the use of the thing misapplied is $20 or more but less than $200; "(3) a Class A misdemeanor if the value of the use of the thing misapplied is $200 or more but less than $750;

"(4) a felony of the third degree if the value of the use of the thing misapplied is $750 or more but less than $20,000; and "(5) a felony of the second degree if the value of the use of the thing misapplied is $20,000 or more." Prior Laws: Rev.P.C.1879, arts. 96, 97, 99, 101 to 104, 104b, 105 to 109, 117 to 119, 207, 208, 240, 241, 242 to 249, 252 to 264, 267, 270, 275 to 278, 368, 369. Rev.P.C.1895, arts. 96, 97, 99, 101 to 104, 110, 110a, 110b, 119a, 122 to 124, 222, 223, 256 to 265, 268 to 283, 286, 289, 294 to 298, 392, 393, 489, 490, 1013, 1013a. Rev.P.C.1911, arts. 96, 97, 99, 101, 103 to 107, 109, 119, 122 to 129, 144, 163 to 165, 167, 173, 326, 327, 363 to 373, 375, 388 to 408, 412, 417, 420, 426 to 434, 583, 584, 830, 831, 1578, 1581 to 1584, 1611. Acts 1933, 43rd Leg., p. 771, ch. 229. Vernon's Ann.P.C. (1925) arts. 86, 87, 89 to 91, 93 to 96, 100, 101, 107f, 108, 110, 112 to 120, 142, 143, 145, 146, 323, 324, 365 to 371, 381 to 403, 407 to 423, 425 to 427, 640, 641, 831, 832, 1041, 1157, 1158, 1539 to 1541, 1544b. Former Sections: A former � 39.02 was renumbered as V.T.C.A., Penal Code � 39.03 by Acts 1993, 73rd Leg., ch. 900, � 1.01, eff. Sept. 1, 1994. CROSS REFERENCES "Public servant" defined, see V.T.C.A., Penal Code � 1.07. Punishment, Class A misdemeanor, see V.T.C.A., Penal Code � 12.21. Class B misdemeanor, see V.T.C.A., Penal Code � 12.22. Class C misdemeanor, see V.T.C.A., Penal Code � 12.23. First degree felony, see V.T.C.A., Penal Code � 12.32. Second degree felony, see V.T.C.A., Penal Code � 12.33. State jail felony, see V.T.C.A., Penal Code � 12.35. Third degree felony, see V.T.C.A., Penal Code � 12.34. LAW REVIEW COMMENTARIES Changes in criminal law. Kenneth W. Sparks, 21 Hous.Law. 20 (1983).

Crime of public drunkenness. Walter W. Steele, Jr. 33 Tex.B.J. 95 (1970). LIBRARY REFERENCES 2003 Main Volume Officers and Public Employees 121. Westlaw Topic No. 283. C.J.S. Officers and Public Employees �� 255 to 259. RESEARCH REFERENCES 2006 Electronic Pocket Part Update Encyclopedias TX Jur. 3d Criminal Law � 1271, Elements of Offense. TX Jur. 3d Criminal Law � 1272, Intent and Motive. TX Jur. 3d Criminal Law � 1273, Proscribed Conduct; Misusing Thing of Value Belonging to Government. TX Jur. 3d Criminal Law � 1275, Degree of Offense. TX Jur. 3d Criminal Law � 1276, Indictment and Information. TX Jur. 3d Criminal Law � 2112, What Constitutes Official Misconduct or Oppression for Purposes of District Court Jurisdiction. TX Jur. 3d Criminal Law � 2666, Following Language of Statute. TX Jur. 3d Employer & Employee � 55, Retaliatory Discharge; Illegal Acts -Whistleblowing. TX Jur. 3d Municipalities � 455, Funds, Generally. TX Jur. 3d State of Texas � 22, Criminal Liability. Forms Texas Jurisprudence Pleading & Practice Forms 2d Ed � 9:12, Introductory Comments. Treatises and Practice Aids McDonald & Carlson Texas Civil Practice � 5:38, Criminal Statutes Relating to Appellate Judges. Charlton, 6 Tex. Prac. Series � 23.3, Official Oppression. McCormick, Blackwell & Blackwell, 7 Tex. Prac. Series � 22.1, Abuse of Official Capacity -- by Violating Law.

McCormick, Blackwell & Blackwell, 7 Tex. Prac. Series � 22.2, Abuse of Official Capacity -- by Misuse. McCormick, Blackwell & Blackwell, 8 Tex. Prac. Series � 128.1, Official Misconduct. Brooks, 22 Tex. Prac. Series � 3.11, Official Misconduct. Brooks, 35 Tex. Prac. Series � 17.9, Interest and Sinking Funds-Investment of Funds. Brooks, 35 Tex. Prac. Series � 7.19, Criminal Official Misconduct. Brooks, 36 Tex. Prac. Series � 20.35, Service of Process. Dix and Dawson, 40 Tex. Prac. Series � 1.24, Misdemeanors Involving Official Misconduct -- Eligible Conduct. Dix and Dawson, 41 Tex. Prac. Series � 20.255, Intent and Details of Required Objective. NOTES OF DECISIONS In general 2 Admissibility of evidence 14 Burden of proof 15.5 Custody or possession by virtue of employment, taking or misapplying thing of value 8 Defenses 12 Double jeopardy 10 Indictment 11 Instructions 16 Intent, generally 3 Jurisdiction 9 Official duty 5 Presumptions and burden of proof 13 Public servants 4 Review 17 Sufficiency of evidence 15

Taking or misapplying thing of value 7, 8 Taking or misapplying thing of value - In general 7 Taking or misapplying thing of value - Custody or possession by virtue of employment 8 Thing of value, generally 6 Validity 1

1. Validity Rev.P.C.1911 art. 427 (now, this section) was constitutional. Logan v. State (1908) 54 Tex.Crim. 74, 111 S.W. 1028; Huddleston v. State (1908) 54 Tex.Crim. 93, 112 S.W. 64; Brown v. State (1908) 54 Tex.Crim. 121, 112 S.W. 80; Smith v. State (1908) 54 Tex.Crim. 298, 113 S.W. 289; Jones v. Same (1908) 54 Tex.Crim. 507, 113 S.W. 761; Northern Texas Traction Co. v. Danforth (1909) 53 Civ.App. 419, 116 S.W. 148; Dallas Consol. Electric St. R. Co. v. Chase (Civ.App.1909) 118 S.W. 783; Same v. Chambers (1909) 55 Civ.App. 331, 118 S.W. 851; Oates v. State (1909) 56 Tex.Crim. 571, 121 S.W. 370; Rasor v. State (1909) 57 Tex.Crim. 10, 121 S.W. 512; Beaver v. State (1912) 63 Tex.Crim. 581, 142 S.W. 11. 2. In general Proceedings involving official misconduct are sui generis. Talamantez v. State (Cr.App. 1992) 829 S.W.2d 174. Officers And Public Employees 122 Penal Code does not create private causes of action and, thus, alleged violations of Penal Code by state prison officials could not be basis for damages claim by inmate. Aguilar v. Chastain (App. 12 Dist. 1996) 923 S.W.2d 740, rehearing overruled, writ denied. Action 3; Prisons 10 3. Intent, generally One engages in "official misconduct" whenever one forms requisite specific intent at outset or in course of or after misusing anything of value belonging to government. Talamantez v. State (Cr.App. 1992) 829 S.W.2d 174. Officers And Public Employees 121 Only requisite intent in offense of abuse of official capacity by misuse of government property with intent to obtain benefit is to obtain a benefit; intended beneficiary is not an element of that intent. State v. Goldsberry (App. 1 Dist. 2000) 14 S.W.3d 770, rehearing overruled, petition for discretionary review refused. Officers And Public Employees 121 4. Public servants

The demand of illegal fees constituted "official misconduct" subjecting a county judge to removal from office. Brackenridge v. State (App. 1889) 11 S.W. 630. Where act of trustees of Hedley independent school district in designating accused as collector of taxes for the district created the office of school district collector of taxes, accused's subsequent qualification as county assessor and collector vacated the district office and he could not thereafter be regarded as a "de facto officer" of the district subject to prosecution as such for conversion of the district's funds. Adamson v. State (Cr.App. 1943) 145 Tex.Crim. 570, 171 S.W.2d 121. Schools 106.4(5) Duration of county commissioner's impulse or purpose over period of several months did not mean that alleged official misconduct was singular; regardless of continuing purpose, when county equipment stood idle, commissioner was not engaged in conduct constituting an offense, but new and discrete misapplication offenses were committed when the bodily movement resumed. Talamantez v. State (Cr.App. 1992) 829 S.W.2d 174. Counties 60 A cashier in the accounting department of the school may or may not be a clerk or other employee of "an officer of the government" so as to become subject to Vernon's Ann.P.C. (1925) art. 86 (now, this section), that issue being a mixed question of fact and law; however, the monies collected by such cashier are public monies. Op.Atty.Gen.1972, No. M-1189. A member of the house of representatives who intentionally or knowingly charges expenditures to the state in excess of the amount authorized by H.S.R. No. 4 could be subject to prosecution under this section. Op.Atty.Gen.1975, No. H-666. 5. Official duty Constable who demanded and received $8 from eight young people who were singing and telling stories around bonfire which they had built near a road at night, as fee for not arresting such young people on vagrancy charge, was not guilty of extortion in that he willfully collected money as purported fee for service or act not done, where young people had not violated any law and no duty rested on constable to arrest any of them or take them before a magistrate. Chancellor v. State (Cr.App. 1937) 131 Tex.Crim. 617, 101 S.W.2d 570. Extortion And Threats 1 Officer could not be convicted under Rev.P.C.1895, art. 256 (now, this section) prohibiting officer authorized to collect fees from willfully collecting money as purported fee for service or act not done, unless there were a service or act within official duty of such officer which he had not done or did not do, but for asserted doing of which he had demanded and received money as a fee. Chancellor v. State (Cr.App. 1937) 131 Tex.Crim. 617, 101 S.W.2d 570. Extortion And Threats 1 6. Thing of value, generally "Any thing of value" within meaning of statutory prohibition against official conduct by misapplying anything of value includes any money, property, or other thing of value belonging to government. Talamantez v. State (Cr.App. 1992) 829 S.W.2d 174. Officers And Public Employees 121 Value of county commissioner's intermittent use of county equipment for his family was sum of fair value for purpose of determining whether the official misconduct

was misdemeanor or felony. Talamantez v. State (Cr.App. 1992) 829 S.W.2d 174. Criminal Law 27 "Value of the use of the thing misapplied" within meaning of statute making official misconduct misdemeanor or felony according to value of the use of the thing misapplied is sum of fair value in use of thing, accruing with use of the thing. Talamantez v. State (Cr.App. 1992) 829 S.W.2d 174. Criminal Law 27 Although a special discount or travel bonus resulting from a public servant's travel on official business, paid for by public entity, is a "thing of value" under subsec. (a) of this section and belongs to the government; if the financial management division of the public entity determines that the travel discount or bonus could not be used for the business of the public entity, the discount or bonus may be used for personal purposes. State Ethics Advisory Commission Opinion 1984-6. 7. Taking or misapplying thing of value--In general A city secretary could not be convicted of misapplying a warrant belonging to the city, where he actually deposited the warrant in a bank to the credit of the city, although he deposited it to the credit of a wrong fund for the purpose of covering up a shortage in that fund. Dickey v. State (Cr.App. 1912) 65 Tex.Crim. 374, 144 S.W. 271. That taxpayer transmit such county funds. Embezzlement

paid taxes by canceling tax collector's note, and collector did not amount to county, would not support conviction for misapplication of Miller v. State (Cr.App. 1932) 122 Tex.Crim. 59, 53 S.W.2d 790. 6

For purposes of removal of county sheriff for misconduct, willfully using county vehicles and fuel for private benefit constitutes misapplication or misappropriation, even though same activity accomplishes legitimate public function. State ex rel. Hightower v. Smith (Sup. 1984) 671 S.W.2d 32, on remand 673 S.W.2d 704. Sheriffs And Constables 6 "To apply" in sense germane to statutory prohibition against official misconduct by misapplying anything of value belonging to government means to put to use. Talamantez v. State (Cr.App. 1992) 829 S.W.2d 174. Officers And Public Employees 121 "To misapply" in sense germane to statutory prohibition against official misconduct by misapplying anything of value belonging to government means to apply wrongly or to misuse or spend without proper authority. Talamantez v. State (Cr.App. 1992) 829 S.W.2d 174. Officers And Public Employees 121 "Use" within meaning of statute making official misconduct misdemeanor or felony according to value of use of the thing misapplied contemplates the duration of misuse. Talamantez v. State (Cr.App. 1992) 829 S.W.2d 174. Criminal Law 27 Wife of chief investigator for district attorney, who is also an employee of district attorney, does not misuse government property by riding as passenger commuting to and from work in official vehicle assigned to chief investigator. Op.Atty.Gen. 1997, LO 97-083. Incidental use of state telephones by state employees to make local personal calls does not violate this section, such use of telephones not being a "misapplication"

as contemplated by this section, provided such use does not result in additional costs or damage to the state and generally will not hinder the day to day operation of government. State Ethics Advisory Commission Opinion 1984-9. Office-holder commits offense under subd. (a) of this section if, with intent to obtain benefit, he intentionally or knowingly uses his office stationery, secretary, and typewriter for letter of application seeking appointment to another office outside state government, but misapplication does not occur when he writes recommendation for any person, including himself, to another state office. State Ethics Advisory Commission Opinion 1984-20. It is a matter for legislature, subject to constitutional limitations, to determine the appropriate uses for legislative resources and to determine whether there are circumstances in which a member of the legislature may use for personal purposes computers owned by the state and reimburse the state for any costs to the state. Tex.Ethics Comm.Op. No. 260 (1995). An employee who has used state agency work time to work on a lawsuit the employee had filed against the state would be misusing a thing of value belonging to the state in violation of Penal Code � 39.02(a)(2). Tex.Ethics Comm.Op. No. 294 (1995). Penal Code section 39.02 does not require state agencies to adopt policies absolutely prohibiting any personal use of telephones or computer services as long as the state is reimbursed for any direct costs incurred. In adopting policies about the use of agency equipment, agencies should make sure that any permissive personal use does not result in direct costs paid by the state and does not impede agency functions. Agency policies should also ensure that state resources are not used for private commercial purposes and that only incidental amounts of employee time--time periods comparable to reasonable coffee breaks during the day--are used to attend to personal matters. Tex.Ethics Comm.Op. No. 372 (1997). The use of state computers or personnel to prepare campaign reports for officeholders would be a misuse of government property. Tex.Ethics Comm.Op. No. 386 (1997). A state employee's incidental use of state telephones to place long-distance personal calls is not a misapplication of government resources as long as the calls do not result in any charges to the state. Tex.Ethics Comm.Op. No. 395 (1998). Since funds derived from sale of road district bonds do not constitute funds belonging to or under the control of state, a county commissioner who takes road bond money voted in one road district and spends it in another road district cannot be successfully prosecuted under Vernon's Ann.P.C. (1925) art. 94 (now, this section). Op.Atty.Gen.1941, No. 0-3703. 8. ---- Custody or possession by virtue of employment, taking or misapplying thing of value A city secretary could not be convicted of misapplying funds of the city, where the charter did not require him to handle any such funds, since they did not come into his custody by virtue of his office. Dickey v. State (Cr.App. 1912) 65 Tex.Crim. 374, 144 S.W. 271. For officer to be guilty of misapplying or converting public funds, funds must

have "come into his custody or possession" by virtue of his office, which means that he must be in actual possession thereof at time of conversion or misapplication. Reynolds v. State (Cr.App. 1936) 130 Tex.Crim. 78, 92 S.W.2d 458. Embezzlement 11(2) Tax collector's drawing of drafts on county depository after depositing money collected by him therein did not constitute conversion or misapplication of public funds within Vernon's Ann.P.C. (1925) art. 95 (now, this section) since funds passed from collector's possession and custody on deposit thereof in county depository. Reynolds v. State (Cr.App. 1936) 130 Tex.Crim. 78, 92 S.W.2d 458. Embezzlement 11(2) Where an officer is charged with embezzling or misapplying public funds, his duties as such officer must authorize or require him to receive money in his official capacity. Dupuy v. State (Cr.App. 1937) 132 Tex.Crim. 539, 106 S.W.2d 287. Embezzlement 11(2) Where deputy county tax assessor and collector accepted money from a taxpayer in corridor of county courthouse instead of at office at a time when he was authorized to collect taxes and delivered a receipt to taxpayer, collector was acting in his official capacity in receiving the money, instead of as agent of taxpayer, for purposes of determining criminal liability for misapplication of public funds. Hibbetts v. State (Cr.App. 1938) 136 Tex.Crim. 170, 123 S.W.2d 898. Embezzlement 21 A county commissioner filing fictitious account and securing and cashing warrant and giving portion of proceeds in excess of payment due on automobile to seller of automobile could not be convicted for misapplication of public funds, in absence of evidence that money involved was in hands of commissioner in his official capacity. Hanna v. State (Cr.App. 1940) 138 Tex.Crim. 183, 135 S.W.2d 105. Counties 60 Where county judge as ex officio county school superintendent was not authorized by statute or by trustees of school district to act as fiscal agent for independent school district or to receive in his official capacity money belonging to district or to write checks on school funds in depository bank without a voucher issued by trustees, school funds were not in possession of county judge and hence he could not be guilty of offense of misapplication of funds. McMorries v. State (Cr.App. 1955) 161 Tex.Crim. 608, 279 S.W.2d 90. Schools 48(8) Although a legislator's staff's services, the legislator's office facilities, supplies, and equipment are things of value belonging to the government that have come into the legislator's custody or possession by virtue of the legislator's office, efforts to solicit support among voters for a constitutional amendment is an activity connected with the legislator's office, and, thus a legislator may use his or her office facilities, supplies, and equipment to support or oppose the adoption of a constitutional amendment when the amendment becomes a ballot issue. State Ethics Advisory Commission Opinion 1984-10. 9. Jurisdiction Offense of "official oppression" charged against police officer was within ambit of phrase "official misconduct" and thus district court had jurisdiction to hear matter. Emerson v. State (App. 1 Dist. 1983) 662 S.W.2d 92, petition for discretionary review granted, affirmed 727 S.W.2d 267. Criminal Law 93

County court had jurisdiction over Class A misdemeanor information alleging theft by deception by public servant. Martinez v. State (App. 13 Dist. 2006) 2006 WL 563040. Criminal Law 93 10. Double jeopardy Prosecution of county attorney for theft of funds from county and official misconduct in the misapplication of those funds was not barred by verdict for county attorney in removal suit alleging the same acts, where at the time of the criminal trial the results of the removal suit had not reached finality, there was an additional issue favorable to the county attorney in the removal suit, and county attorney ultimately prevailed in the removal suit as a matter of law and not of fact. Knorpp v. State (App. 8 Dist. 1983) 645 S.W.2d 892. Criminal Law 43 11. Indictment An indictment for misapplication of public funds need not describe the money embezzled, though the better practice is to describe it generally by name, kind and ownership. State v. Brooks (1875) 42 Tex. 62; Lewis v. State (1890) 28 Tex.Crim. 140, 12 S.W. 736. To properly charge the offense of the misapplication of county or city funds, the indictment must allege the ownership of the funds in the county, city or town; that the funds came into defendant's possession by virtue of his office; and that he converted the money fraudulently to his own use. Crane v. State (1888) 26 Tex.Crim. 482, 9 S.W. 773; Steiner v. State (1894) 33 Tex.Crim. 291, 26 S.W. 214; Hartnett v. State (1909) 56 Tex.Crim. 281, 119 S.W. 855. Indictment for "misapplication of public funds" need not aver fraud; averment and proof of county ownership of misapplied road funds was sufficient. Hooper v. State (Cr.App. 1925) 102 Tex.Crim. 345, 279 S.W. 449. Embezzlement 34 Indictment which charged that accused was district clerk of county and that as such officer and by virtue of such office $50 belonging to county had come into and was in accused's custody and possession, and that accused fraudulently took, misapplied, and converted the $50 to his own use, sufficiently charged offense under Vernon's Ann.P.C. (1925) art. 95 (now, this section). Beard v. State (Cr.App. 1940) 140 Tex.Crim. 127, 143 S.W.2d 967. Embezzlement 26 Indictment charging director of city treasury with the taking, misapplication and conversion of lumber belonging to city, was not fatally defective for failure to specify quantity of lumber taken, since value of property misapplied is immaterial. Floyd v. State (Cr.App. 1956) 164 Tex.Crim. 50, 296 S.W.2d 523. Embezzlement 29 Indictment for official misconduct was sufficient where it followed precisely the language of this section by alleging that money which was allegedly wrongfully appropriated by defendant "came into his custody by virtue of his employment"; indictment likewise was not invalid for failure to describe such money by number and kind. Powell v. State (Cr.App. 1977) 549 S.W.2d 398. Officers And Public Employees 122 Omission of words "intent to promote or assist the commission of the offense" from indictment under which defendant, a nonpublic official, was convicted of official

misconduct was not fundamental error as although defendant could not commit the offense, as opposed to aiding the public official in committing the offense, defendant could be charged as if he had directly committed the offense and indictment facially complied with requirements of culpable mental state (� 6.02). Wooley v. State (App. 3 Dist. 1982) 629 S.W.2d 867, review refused. Criminal Law 1032(5) Indictment which alleged official misconduct sufficiently stated an offense, although it did not allege elements of this section; official misconduct only involved violation of Open Meeting Law [Civ. St. art. 6252-17] and indictments properly alleged all elements of offense of violating Civ. St. art. 6252-17. State v. Williams (App. 4 Dist. 1989) 780 S.W.2d 891. Officers And Public Employees 122 Indictment for third-degree felony official misconduct by misapplying thing of value belonging to government could allege county commissioner's misapplication of county equipment over period of time with intent to obtain benefit for so long as county equipment was being used to complete the described undertaking for members of commissioner's family. Talamantez v. State (Cr.App. 1992) 829 S.W.2d 174. Counties 60 Indictment may allege official misconduct in gross consisting of misapplication of anything of value over period of time with intent to benefit others as long as the thing is being thus used. Talamantez v. State (Cr.App. 1992) 829 S.W.2d 174. Officers And Public Employees 122 How defendant or another benefitted from alleged misuse of government property was evidentiary in nature, and thus state was not required to allege further details about benefit in indictment charging defendant with abuse of official capacity by misusing government property with intent to obtain benefit. State v. Goldsberry (App. 1 Dist. 2000) 14 S.W.3d 770, rehearing overruled, petition for discretionary review refused. Indictment And Information 65 Indictment charging abuse of official capacity that alleged defendant misused services in the value of more than $1,500 "on or about" two particular dates was sufficient, so long as the act occurred before the date of the presentation of the indictment, but within the relevant limitations period. Megason v. State (App. 6 Dist. 2000) 19 S.W.3d 883, petition for discretionary review refused. Indictment And Information 87(2) Facts constituting offense of abuse of official capacity were not alleged so that conclusion of law as to necessary harm or fraud could be arrived at from facts stated in indictment, and thus indictment was properly quashed, where indictment alleged that defendant did not work on three days, harm of taking day off from work was not apparent from face of indictment, manner and means by which someone was harmed was essential to permit defendant to prepare defense, and such allegations should have been contained within charging instrument and not left to speculation of defendant. State v. Campbell (App. 12 Dist. 2000) 113 S.W.3d 9, petition for discretionary review refused. Indictment And Information 137(6); Officers And Public Employees 122 Inclusion of word custody in indictment charging defendant, a police lieutenant, with abuse of official capacity regarding instructing police sergeant to install computer at defendant's residence did not render indictment unconstitutionally vague, since inclusion of word custody tracked statutory language, and indictment specified that nature of relationship was that defendant was sergeant's supervisor. Campbell v. State (App. 7 Dist. 2003) 2003 WL 22974606. Indictment And Information 110(3)

Failure to define term misuse in indictment charging defendant, a police lieutenant, with abuse of official capacity did not render indictment impermissibly vague; statute defined misuse only with respect to misuse of property, defendant was charged with misuse of government personnel by having sergeant install computer at defendant's residence, and indictment specified conduct constituting misuse. Campbell v. State (App. 7 Dist. 2003) 2003 WL 22974606. Indictment And Information 110(1) 12. Defenses Where an employee of the state embezzles public funds, a repayment of the amount embezzled does not excuse, extenuate, or justify the offense. Busby v. State (Cr.App. 1907) 51 Tex.Crim. 289, 103 S.W. 638. Embezzlement 23 It was not a defense to charge against county attorney of misapplication of county funds that county attorney had a greater right to possession of the check representing those funds because of his payee status. Knorpp v. State (App. 8 Dist. 1983) 645 S.W.2d 892. Larceny 26 Former county law enforcement agent's deposition testimony, together with statements contained in affidavit submitted to show waiver of state's immunity under Whistleblower Act, were sufficient to show that he believed conduct of associate he reported constituted violation of state law, as prerequisite to determination whether agent reported violation in good faith, where he stated his belief that associate's conduct in using government property for her own personal use violated statute governing misuse of county property. Bexar County v. Lopez (App. 4 Dist. 2002) 94 S.W.3d 711. Counties 67 13. Presumptions and burden of proof State must establish beyond reasonable doubt that defendant, charged with misapplying city funds, held office of tax collector as charged in indictment. Germany v. State (Cr.App. 1928) 109 Tex.Crim. 180, 3 S.W.2d 798. Municipal Corporations 174 In prosecution against tax assessor-collector of school district for misapplication of funds of district, where testimony was uncontroverted that district was in existence and carrying on functions of a political subdivision of state government, it was unnecessary to show creation of district in accordance with procedure provided by law. Dupuy v. State (Cr.App. 1938) 135 Tex.Crim. 595, 121 S.W.2d 1003. Embezzlement 35 In prosecution against county commissioner for misapplication of public funds, state must prove commissioner's possession in his official capacity of funds belonging to county. Hanna v. State (Cr.App. 1940) 138 Tex.Crim. 183, 135 S.W.2d 105. Counties 60 In prosecution of deputy sheriff for misapplication of county funds, the main thing to be proven was whether defendant was a deputy sheriff, and as such received money, but did not pay the money where the law directed. Reed v. State (Cr.App. 1941) 141 Tex.Crim. 503, 149 S.W.2d 119. Embezzlement 35 In prosecution of deputy county clerk for misapplication of county funds, wherein deputy county clerk denied her guilt and raised the issue of her identity and

intent in the transaction, it was incumbent on the state to prove her identity and fraudulent intent. Campbell v. State (Cr.App. 1956) 163 Tex.Crim. 545, 294 S.W.2d 125. Embezzlement 35; Indictment And Information 166 Justice of the peace, in receiving funds collected from various defendants in an official capacity, became, in effect, a trustee of the funds for the county and, in order to prove misapplication of the funds, State was not required to show that justice of the peace converted any particular sum from a particular source to his own use but could rely on a circumstantially proven case. Kirkpatrick v. State (Cr.App. 1974) 515 S.W.2d 289. Embezzlement 21; Embezzlement 44(1) 14. Admissibility of evidence In prosecution against school district tax collector for conversion of district's funds, other transactions involving collection of state, county, and district taxes by accused which were handled in the same way as the ones under investigation were admissible to show system, intent, motive and circumstance of guilt, where prosecution was submitted upon circumstantial evidence. Adamson v. State (Cr.App. 1943) 145 Tex.Crim. 570, 171 S.W.2d 121. Schools 106.4(5) In prosecution against school district tax collector for conversion of district's funds, tax receipts taken from the back of the tax roll was admissible as showing motive, intent, and a circumstance of guilt, where such receipts were made out in accused's handwriting and presence of regular receipts in the roll would evidence nonpayment of the tax. Adamson v. State (Cr.App. 1943) 145 Tex.Crim. 570, 171 S.W.2d 121. Schools 106.4(5) In prosecution of deputy county clerk for misapplication of county funds, evidence of other transactions similar to the transaction charged was admissible to show system and in proof of identity and fraudulent intent of deputy county clerk. Campbell v. State (Cr.App. 1956) 163 Tex.Crim. 545, 294 S.W.2d 125. Criminal Law 369.15; Criminal Law 371(2); Criminal Law 372(8) In prosecution of deputy county clerk for misapplication of county funds, fact that some of the altered receipts, which were written and issued in department over which deputy county clerk had supervision, may not have been issued by deputy county clerk, did not render them inadmissible to show system and in proof of identity and fraudulent intent of deputy county clerk. Campbell v. State (Cr.App. 1956) 163 Tex.Crim. 545, 294 S.W.2d 125. Criminal Law 374 In prosecution of a justice of the peace for misapplication of public funds with respect to fines collected by him, evidence of other transactions similar to that forming basis of prosecution was admissible to show intent, knowledge and system of defendant and to combat his theory of mistake, inadvertence, hot check, charge backs, hardship cases, and application of money on other cases in arrears. Vernon v. State (Cr.App. 1960) 170 Tex.Crim. 150, 338 S.W.2d 728. Criminal Law 370; Criminal Law 371(2); Criminal Law 372(8) 15. Sufficiency of evidence Evidence was sufficient to sustain district attorney's conviction of official misconduct by unlawfully taking and misapplying warrant for payment of office employees and expenses to personal and private business expenses. Neal v. State of Tex., C.A.5 (Tex.)1989, 870 F.2d 312, rehearing denied. Embezzlement 44(1)

Evidence failing to show fraudulent intent of accused in delivering road bonds did not support conviction for misapplied county funds, where averment and proof of county ownership of misapplied road funds was sufficient. Hooper v. State (Cr.App. 1925) 102 Tex.Crim. 345, 279 S.W. 449. Embezzlement 44(2) Evidence that justice of the peace failed to account to the county for a total of $1,594 which he had collected from individual defendants as fines in criminal cases, that the monies were withheld for up to 14 months in justice of the peace's bank account while he was periodically turning over a portion of the funds to the county and falsely reporting that he was turning over all of the monies collected, and that justice of the peace paid the county the $1,594 only when audit was instituted was sufficient to support finding that justice of the peace converted the funds to his own use and sustained his conviction for misapplication of county funds. Kirkpatrick v. State (Cr.App. 1974) 515 S.W.2d 289. Embezzlement 44(1) Evidence that State issued warrant to defendant to pay salaries of secretaries and investigators, that defendant deposited warrant in account bearing his name and obtained credit with it and then drew on this credit to pay obligations other than salaries of secretaries and investigators, and to obtain cash for himself was sufficient to show that defendant obtained benefit for himself from warrant, as required to support conviction for official misconduct. Neal v. State (Cr.App. 1984) 689 S.W.2d 420, certiorari denied 106 S.Ct. 65, 474 U.S. 818, 88 L.Ed.2d 53. Officers And Public Employees 122 Evidence that state treasury warrant was evidence of an indebtedness of State to payee in amount named and that defendant obtained credit in face amount when he endorsed and deposited warrant in his bank was sufficient to show that warrant was thing of value, as required to support conviction for official misconduct. Neal v. State (Cr.App. 1984) 689 S.W.2d 420, certiorari denied 106 S.Ct. 65, 474 U.S. 818, 88 L.Ed.2d 53. Officers And Public Employees 122 Evidence was sufficient to prove that defendant, as county clerk, misused services in the value of more than $1,500 on or about the two particular dates set out in the indictment, and thus, was sufficient to support conviction for abuse of official capacity; defendant's twice billing the company hired to microfilm and move old record books for $1,800 and $2,500 for work her children never performed, and her accepting the checks for those amounts, was an admission of the value of the work done. Megason v. State (App. 6 Dist. 2000) 19 S.W.3d 883, petition for discretionary review refused. Counties 102 Defendant's evidence of possible public benefit, even a primary benefit, from use of government resources to install computer at residence of defendant, who was a police lieutenant, did not negate state's proof of elements of offense in prosecution for abuse of official capacity, and thus factually sufficient evidence existed to support conviction. Campbell v. State (App. 7 Dist. 2003) 2003 WL 22974606. Municipal Corporations 190 Variance between indictment's allegation that defendant, a police lieutenant, ordered police sergeant to appear at defendant's residence at start of sergeant's shift to install defendant's computer and proof that defendant instructed sergeant to do so was not material and did not render evidence legally insufficient in prosecution for abuse of official capacity. Campbell v. State (App. 7 Dist. 2003) 2003 WL 22974606. Municipal Corporations 190 Legally sufficient evidence existed that defendant, a police lieutenant, misused government personnel under his control for his own benefit to support conviction for abuse of official capacity; evidence indicated that defendant instructed

police sergeant to arrive at defendant's home at start of sergeant's shift, sergeant installed computer at defendant's home, defendant instructed another sergeant that sergeant installing computer was on "special assignment," and defendant told sergeant after installation that sergeant was not to go to the jail that evening. Campbell v. State (App. 7 Dist. 2003) 2003 WL 22974606. Municipal Corporations 190 Legally sufficient evidence existed that defendant, a police lieutenant, intended to obtain a personal benefit to support conviction for abuse of official capacity; evidence indicated that defendant had police sergeant install personal computer in defendant's home while sergeant was being paid by police department, defendant planned to use computer for personal as well as work-related purposes, and computer would have been useful in pursuing defendant's real estate investments. Campbell v. State (App. 7 Dist. 2003) 2003 WL 22974606. Municipal Corporations 190 15.5. Burden of proof In prosecution for abuse of official capacity, state was not required to prove that defendant, a police lieutenant, gave a direct order to police sergeant to install computer at defendant's home; conduct prohibited by statute was misuse rather than misuse by ordering. Campbell v. State (App. 7 Dist. 2003) 2003 WL 22974606. Municipal Corporations 190 State did not have the burden to prove that defendant held both intent to obtain a benefit and intent to defraud, to prove abuse of official capacity, even though indictment stated allegations in the conjunctive; statute presented those intent elements disjunctively as alternatives. Campbell v. State (App. 7 Dist. 2003) 2003 WL 22974606. Indictment And Information 125(20) 16. Instructions In prosecution against tax assessor-collector of school district for misapplying funds of district, charge that if jury believed that assessor-collector was short in his accounts but that shortage was not brought about by reason of any fraudulent intent, or if they had a reasonable doubt thereof, he should be acquitted, was not erroneous on ground that it shifted burden of proof to defendant, in view of special charge given at defendant's request covering same matter. Dupuy v. State (Cr.App. 1938) 135 Tex.Crim. 595, 121 S.W.2d 1003. Criminal Law 778(5) Charge which explained to jury intent required under Vernon's Ann.P.C. (1925) art. 95 (now, this section) prohibiting misapplication of county funds, and which instructed on the law of circumstantial evidence fully protected rights of justice of the peace charged with converting county funds to his own use. Kirkpatrick v. State (Cr.App. 1974) 515 S.W.2d 289. Embezzlement 48(1); Embezzlement 48(2) City employees who testified that defendant city maintenance director ordered them to purchase paint with city funds for improper purpose were "accomplices as a matter of law," and thus, defendant was entitled to jury instruction on accomplice witness testimony in prosecution for misdemeanor abuse of official capacity; both employees admitted participation in crime and, although they testified that they did so because defendant threatened to fire them if they did not, such threat was not "force or threat of force" that would warrant finding that they were coerced

into participating in scheme. State v. Trevino (App. 13 Dist. 1996) 930 S.W.2d 713, rehearing overruled, petition for discretionary review refused. Criminal Law 780(2) Trial court did not abuse its discretion by granting new trial on ground that defendant was entitled to, but did not receive, accomplice witness instruction, even though defendant did not object or request such instruction. State v. Trevino (App. 13 Dist. 1996) 930 S.W.2d 713, rehearing overruled, petition for discretionary review refused. Criminal Law 922(2); Criminal Law 922(7) 17. Review Had Court of Appeals been correct in finding defendant was improperly convicted by trial court of nepotism and official misconduct, correct remedy would have been dismissal of indictment, not acquittal. Cain v. State (Cr.App. 1993) 855 S.W.2d 714. Criminal Law 1181(1) V. T. C. A., Penal Code � 39.02, TX PENAL � 39.02 Current through the end of the 2006 3rd Called Session of the 79th Legislature. � 2006 Thomson/West END OF DOCUMENT (C) 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.