PENAL CODE
CHAPTER 39. ABUSE OF OFFICE
§ 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, § 1.01, eff. Sept. 1,
1994.
§ 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.
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.
§ 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, § 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.
§ 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.
(b) An offense under Subsection (a)(1) is a Class A
misdemeanor. An offense under Subsection (a)(2) is a state jail
felony.
(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.
(f) An employee of the Texas Department of Criminal Justice
commits an offense if the employee engages in sexual contact,
sexual intercourse, or deviate sexual intercourse with an
individual who is not the employee's spouse and who the employee
knows is under the supervision of the department but not in the
custody of the department.
(g) An offense under Subsection (f) is a state jail felony.
Added by Acts 1979, 66th Leg., p. 1383, ch. 618, § 1, eff. Sept.
1, 1979. Amended by Acts 1983, 68th Leg., p. 3242, ch. 558, § 8,
eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 18, § 5, eff. April
15, 1987. Renumbered from V.T.C.A., Penal Code § 39.021 and
amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1,
1994. Amended by Acts 1997, 75th Leg., ch. 1406, § 1, eff. Sept.
1, 1997; Acts 1999, 76th Leg., ch. 158, § 1 to 3, eff. Sept. 1,
1999; Acts 2001, 77th Leg., ch. 1070, § 1, eff. Sept. 1, 2001;
Acts 2001, 77th Leg., ch. 1297, § 69, eff. Sept. 1, 2001.
§ 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, § 2, eff. Sept.
1, 1983. Renumbered from V.T.C.A., Penal Code § 39.022 and
amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1,
1994. Amended by Acts 1995, 74th Leg., ch. 321, § 1.104, eff.
Sept. 1, 1995.
§ 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, § 1, eff. Jan. 1, 1974.
Amended by Acts 1983, 68th Leg., p. 3243, ch. 558, § 9, eff.
Sept. 1, 1983; Acts 1987, 70th Leg., ch. 30, § 1, eff. Sept. 1,
1987; Acts 1987, 70th Leg., 2nd C.S., ch. 43, § 3, eff. Oct. 20,
1987; Acts 1989, 71st Leg., ch. 927, § 1, eff. Aug. 28, 1989.
Renumbered from V.T.C.A., Penal Code § 39.03 and amended by Acts
1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994. Amended by
Acts 1995, 74th Leg., ch. 76, § 5.95(90), eff. Sept. 1, 1995;
Acts 1995, 74th Leg., ch. 76, § 14.52, eff. Sept. 1, 1995.
