corruption

Abuse of Official Capacity | Penal Code 39.02

Penal Code Section 39.02 makes it illegal for a public servant to use government property, services, personnel, or anything of value, that comes into the public servant’s possession by virtue of the public servant’s office. The mental state requirement for this offense is that the public servant intended to obtain a benefit while intentionally or knowingly committing the act in question.

This offense ranges from a Class C misdemeanor if the value of the thing used was less than $100 to a first-degree felony if the value of the thing used was $300,000 or more.

An example from the State’s Ethics Training website gives this example: State officers and employees are prohibited from using a state computer on state time to send email messages to co-workers urging them to vote for a certain candidate in an upcoming election. 

Misuse of Official Information | Penal Code 39.06

A public servant has access to information that is not made public. Chapter 39 of the Penal Code restricts the use of that information in several ways. Penal Code 39.06 makes it illegal for a public servant to rely on information the public servant has by virtue of their office and that is not public to obtain a financial interest in property, speculate on the basis of that information, or coerce someone else to suppress information. Penal Code Section 39.06 also makes it illegal to use or disclose information that he has by means of his office and that has not been made public. The definition contains two components stated in the conjunctive: information to which the public does not generally have access; and that is prohibited from disclosure under the Open Records Act. Government Code Chapter 552 Subchapter C prohibits the disclosure a variety of records. This includes confidential information, information in personnel files, litigation files, bids, certain legal matters, email addresses, certain investigative matters, certain private communications, agency memos, student records, as well as birth and death records.

An offense under Penal Code Section 39.06 is generally third degree felony.

Application to Non-Public Officials

If you are not a public official, why should you care about these statutes? Under Penal Code Section 7.03, a person who aids a public official in the commission of an offense that can only be committed by a public official may be charged as if he or she had directly committed the offense themselves even though he or she lacked the legal capacity to commit the offense.

Penal Code Section 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 $100;

(2) a Class B misdemeanor if the value of the use of the thing misused is $100 or more but less than $750;

(3) a Class A misdemeanor if the value of the use of the thing misused is $750 or more but less than $2,500;

(4) a state jail felony if the value of the use of the thing misused is $2,500 or more but less than $30,000;

(5) a felony of the third degree if the value of the use of the thing misused is $30,000 or more but less than $150,000;

(6) a felony of the second degree if the value of the use of the thing misused is $150,000 or more but less than $300,000; or

(7) a felony of the first degree if the value of the use of the thing misused is $300,000 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.

Penal Code Section 39.06 MISUSE OF OFFICIAL INFORMATION

(a) A public servant commits an offense if, in reliance on information to which the public servant has access by virtue of the person’s office or employment and that has not been made public, the person:

(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 school administrator, 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.