CHAPTER 39. ABUSE OF OFFICE - Texas Statutes

PENAL CODE

TITLE 8. OFFENSES AGAINST PUBLIC ADMINISTRATION

CHAPTER 39. ABUSE OF OFFICE

Sec. 39.01. DEFINITIONS. In this chapter:

(1) "Law relating to a public servant's office or employment"

means a law that specifically applies to a person acting in the

capacity of a public servant and that directly or indirectly:

(A) imposes a duty on the public servant; or

(B) governs the conduct of the public servant.

(2) "Misuse" means to deal with property contrary to:

(A) an agreement under which the public servant holds the

property;

(B) a contract of employment or oath of office of a public

servant;

(C) a law, including provisions of the General Appropriations

Act specifically relating to government property, that prescribes

the manner of custody or disposition of the property; or

(D) a limited purpose for which the property is delivered or

received.

Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1,

1994.

Sec. 39.015. CONCURRENT JURISDICTION TO PROSECUTE OFFENSES UNDER

THIS CHAPTER. 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 chapter.

Added by Acts 2007, 80th Leg., R.S., Ch.

378, Sec. 2, eff. June 15, 2007.

Sec. 39.02. ABUSE OF OFFICIAL CAPACITY. (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.

(e) If separate transactions that violate Subsection (a)(2) are

conducted pursuant to one scheme or continuing course of conduct,

the conduct may be considered as one offense and the value of the

use of the things misused in the transactions may be aggregated

in determining the classification of the offense.

(f) The value of the use of a thing of value misused under

Subsection (a)(2) may not exceed:

(1) the fair market value of the thing at the time of the

offense; or

(2) if the fair market value of the thing cannot be ascertained,

the cost of replacing the thing within a reasonable time after

the offense.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.

Amended by Acts 1983, 68th Leg., p. 3241, ch. 558, Sec. 7, eff.

Sept. 1, 1983. Renumbered from Penal Code Sec. 39.01 and amended

by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

82, Sec. 1, eff. September 1, 2009.

Sec. 39.03. OFFICIAL OPPRESSION. (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.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.

Amended by Acts 1989, 71st Leg., ch. 1217, Sec. 1, eff. Sept. 1,

1989; Acts 1991, 72nd Leg., ch. 16, Sec. 19.01(34), eff. Aug. 26,

1991. Renumbered from Penal Code Sec. 39.02 by Acts 1993, 73rd

Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 39.04. VIOLATIONS OF THE CIVIL RIGHTS OF PERSON IN CUSTODY;

IMPROPER SEXUAL ACTIVITY WITH PERSON IN CUSTODY. (a) An

official of a correctional facility, an employee of a

correctional facility, a person other than an employee who works

for compensation at a correctional facility, a volunteer at a

correctional facility, or a peace officer commits an offense if

the person intentionally:

(1) denies or impedes a person in custody in the exercise or

enjoyment of any right, privilege, or immunity knowing his

conduct is unlawful; or

(2) engages in sexual contact, sexual intercourse, or deviate

sexual intercourse with an individual in custody or, in the case

of an individual in the custody of the Texas Youth Commission,

employs, authorizes, or induces the individual to engage in

sexual conduct or a sexual performance.

(b) An offense under Subsection (a)(1) is a Class A misdemeanor.

An offense under Subsection (a)(2) is a state jail felony,

except that an offense under Subsection (a)(2) is a felony of the

second degree if the offense is committed against:

(1) an individual in the custody of the Texas Youth Commission;

or

(2) a juvenile offender detained in or committed to a

correctional facility the operation of which is financed

primarily with state funds.

(c) This section shall not preclude prosecution for any other

offense set out in this code.

(d) The Attorney General of Texas shall have concurrent

jurisdiction with law enforcement agencies to investigate

violations of this statute involving serious bodily injury or

death.

(e) In this section:

(1) "Correctional facility" means:

(A) any place described by Section 1.07(a)(14); or

(B) a "secure correctional facility" or "secure detention

facility" as defined by Section 51.02, Family Code.

(2) "Custody" means the detention, arrest, or confinement of an

adult offender or the detention or the commitment of a juvenile

offender to a facility operated by or under a contract with the

Texas Youth Commission or a facility operated by or under

contract with a juvenile board.

(3) "Sexual contact," "sexual intercourse," and "deviate sexual

intercourse" have the meanings assigned by Section 21.01.

(4) "Sexual conduct" and "performance" have the meanings

assigned by Section 43.25.

(5) "Sexual performance" means any performance or part thereof

that includes sexual conduct by an individual.

(f) An employee of the Texas Department of Criminal Justice, the

Texas Youth Commission, or a local juvenile probation department

commits an offense if the employee engages in sexual contact,

sexual intercourse, or deviate sexual intercourse with an

individual who the employee knows is under the supervision of the

department, commission, or probation department but not in the

custody of the department, commission, or probation department.

(g) An offense under Subsection (f) is a state jail felony.

(h) It is an affirmative defense to prosecution under Subsection

(f) that the actor was the spouse of the individual at the time

of the offense.

Added by Acts 1979, 66th Leg., p. 1383, ch. 618, Sec. 1, eff.

Sept. 1, 1979. Amended by Acts 1983, 68th Leg., p. 3242, ch. 558,

Sec. 8, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 18, Sec. 5,

eff. April 15, 1987. Renumbered from Penal Code Sec. 39.021 and

amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept.

1, 1994. Amended by Acts 1997, 75th Leg., ch. 1406, Sec. 1, eff.

Sept. 1, 1997; Acts 1999, 76th Leg., ch. 158, Sec. 1 to 3, eff.

Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1070, Sec. 1, eff. Sept.

1, 2001; Acts 2001, 77th Leg., ch. 1297, Sec. 69, eff. Sept. 1,

2001.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

263, Sec. 62, eff. June 8, 2007.

Acts 2007, 80th Leg., R.S., Ch.

263, Sec. 63, eff. June 8, 2007.

Acts 2007, 80th Leg., R.S., Ch.

378, Sec. 3, eff. June 15, 2007.

Acts 2007, 80th Leg., R.S., Ch.

908, Sec. 43, eff. September 1, 2007.

Acts 2009, 81st Leg., R.S., Ch.

87, Sec. 19.003, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch.

260, Sec. 5, eff. September 1, 2009.

Sec. 39.05. FAILURE TO REPORT DEATH OF PRISONER. (a) A person

commits an offense if the person is required to conduct an

investigation and file a report by Article 49.18, Code of

Criminal Procedure, and the person fails to investigate the

death, fails to file the report as required, or fails to include

in a filed report facts known or discovered in the investigation.

(b) A person commits an offense if the person is required by

Section 501.055, Government Code, to:

(1) give notice of the death of an inmate and the person fails

to give the notice; or

(2) conduct an investigation and file a report and the person:

(A) fails to conduct the investigation or file the report; or

(B) fails to include in the report facts known to the person or

discovered by the person in the investigation.

(c) An offense under this section is a Class B misdemeanor.

Added by Acts 1983, 68th Leg., p. 2510, ch. 441, Sec. 2, eff.

Sept. 1, 1983. Renumbered from Penal Code Sec. 39.022 and amended

by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Amended by Acts 1995, 74th Leg., ch. 321, Sec. 1.104, eff. Sept.

1, 1995.

Sec. 39.06. MISUSE OF OFFICIAL INFORMATION. (a) A public

servant commits an offense if, in reliance on information to

which he has access by virtue of his office or employment and

that has not been made public, he:

(1) acquires or aids another to acquire a pecuniary interest in

any property, transaction, or enterprise that may be affected by

the information;

(2) speculates or aids another to speculate on the basis of the

information; or

(3) as a public servant, including as a principal of a school,

coerces another into suppressing or failing to report that

information to a law enforcement agency.

(b) A public servant commits an offense if with intent to obtain

a benefit or with intent to harm or defraud another, he discloses

or uses information for a nongovernmental purpose that:

(1) he has access to by means of his office or employment; and

(2) has not been made public.

(c) A person commits an offense if, with intent to obtain a

benefit or with intent to harm or defraud another, he solicits or

receives from a public servant information that:

(1) the public servant has access to by means of his office or

employment; and

(2) has not been made public.

(d) In this section, "information that has not been made public"

means any information to which the public does not generally have

access, and that is prohibited from disclosure under Chapter 552,

Government Code.

(e) Except as provided by Subsection (f), an offense under this

section is a felony of the third degree.

(f) An offense under Subsection (a)(3) is a Class C misdemeanor.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.

Amended by Acts 1983, 68th Leg., p. 3243, ch. 558, Sec. 9, eff.

Sept. 1, 1983; Acts 1987, 70th Leg., ch. 30, Sec. 1, eff. Sept.

1, 1987; Acts 1987, 70th Leg., 2nd C.S., ch. 43, Sec. 3, eff.

Oct. 20, 1987; Acts 1989, 71st Leg., ch. 927, Sec. 1, eff. Aug.

28, 1989. Renumbered from Penal Code Sec. 39.03 and amended by

Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(90), eff.

Sept. 1, 1995; Acts 1995, 74th Leg., ch. 76, Sec. 14.52, eff.

Sept. 1, 1995.