Abuse of Official Capacity: Texas Penal Code §39.02

The Texas Abuse of Official Capacity law makes it illegal for public servants to violate a law relating to the public servant’s office or misuse government property to get a personal benefit or to harm someone else.

The Texas legislature codified this criminal offense in Texas Penal Code Section 39.02. The law was not amended in 2023. The law was most recently amended in 2015, when the dollar values that determine the penalty classification level were increased in line with other laws throughout the Penal Code.

The Abuse of Official Capacity law applies only to public servants, and it’s one of several different Texas laws related to public corruption. Some other public corruption laws include Official Oppression, Misuse of Official Information, Bribery, and Acceptance of Honorarium.

The Penal Code classifies the Texas Abuse of Official Capacity law under Title 8 “Offenses Against Public Administration,” Chapter 39 “Abuse Of Office.” Learn more about the Texas offense of Abuse of Official Capacity below.

What is the current Texas law about Abuse of Official Capacity?

Texas law currently defines the offense of Abuse of Official Capacity in Penal Code Section §39.02 as follows:^[1]

(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.

The code specifies that 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 law.^[2]

How can I be charged with an Abuse of Official Capacity offense in Texas?

You can be charged with Abuse of Official Capacity in Texas if the state’s attorneys believe that each of the elements of 39.02(a)(1) or (a)(2), as described in the section above, have been met.

What is the statute of limitation for Abuse of Official Capacity in Texas?

Misdemeanor level Abuse of Official Capacity charges have a two-year limitations period.^[3] Felony level offenses have a three-year limitations period.^[4]

What is the penalty for a Texas Abuse of Official Capacity offense?

A conviction for Abuse of Official Capacity under subsection (a-1) is punished as a Class A misdemeanor,^[5] with a maximum possible fine under Texas state law of up to $4000 and jail time of up to one year. However, a conviction under subsection (a-2) can be punished anywhere from a Class C misdemeanor to a first degree felony, depending on the value of the “misused thing.”^[6]

Can you get probation for Abuse of Official Capacity in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Abuse of Official Capacity, and judges are also allowed to accept deferred adjudication plea deals.^[7]

Note, however, that no matter the offense, neither judges nor juries may recommend community supervision for any suspended sentence of over 10 years.^[8] Also, judges may not grant community supervision after a conviction if (1) the defendant used or exhibited a deadly weapon during the commission of the felony or immediate flight thereafter and (2) the defendant used or exhibited the deadly weapon himself or was a party to the offense and knew that a deadly weapon would be used or exhibited.^[9]

What level of crime is Abuse of Official Capacity in Texas?

The penalty classification for Abuse of Official Capacity ranges from a Class C Misdemeanor to a second degree felony, depending on the circumstances.

Learn more about the penalty range for this offense in the section above.

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Legal References:

^1. Texas Penal Code §39.02. This law is current as of 2024.^2. §39.02(d), Texas Penal Code^3. Code of Criminal Procedure 12.02(a)^4. See Code of Criminal Procedure 12.01(9)^5. Texas Penal Code §39.02(b).^6. Texas Penal Code §39.02(c):

(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.

^7. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102^8. Art. 42A.053(c), Texas Code of Criminal Procedure^9. Art. 42A.054(b), Texas Code of Criminal Procedure