Misuse of Official Information: Texas Penal Code §39.06

The Texas Misuse of Official Information law makes it illegal for a public servant (like a judge or a legislator) to use nonpublic information to obtain a benefit, defraud, or harm someone.

The offense also prohibits public servants from using nonpublic information to acquire an interest in any property, transaction, or enterprise that might be affected by the information, to speculate on the basis of the information, and to coerce another into suppressing or failing to report that information to a law enforcement agency.

“Public servant” is defined broadly in case law. Public servants include school administrators, teachers and anyone else that works for the government.

The Texas legislature codified this criminal offense in Texas Penal Code Section 39.06. The law was not amended in 2023. The law was most recently amended in 2015 when the legislature made some nonsubstantive nomenclature changes.

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

What is the current Texas law about Misuse of Official Information?

The current Texas law defines the offense of Misuse of Official Information in Penal Code Section §39.06 as follows:^[1]

(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.

How can I be charged with a Misuse of Official Information offense in Texas?

You can be charged with Misuse of Official Information in Texas if the state’s attorneys believe that each of the elements of 39.06(a) as described in the section above have been met.

These cases can be difficult to prosecute. In State v. Ford and State v. Newton, cases were dismissed because the information was excluded from the Public Information Act and thus not prohibited from disclosure. The salient point here is the subsection (d) definition of the type of information which is secret:

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.

Another notable case arose out of Victoria County in 2008, where a district attorney indicted the mayor, chief of police and others for Misuse of Official Information. The indictments were dismissed because the prosecuting attorney did not adequately handle the definition in subsection (d).

What is the statute of limitation for Misuse of Official Information in Texas?

Misdemeanor level Misuse of Official Information charges have a two-year limitations period.^[2] Felony level offenses have a three-year limitations period.^[3]

What is the penalty for a Texas Misuse of Official Information offense?

If the offense falls under subsection (a)(3) then a conviction for Misuse of Official Information in Texas is punished as a Class C misdemeanor with a maximum possible fine under Texas state law of up to $500.

If the offense falls under any subsection other than (a)(3) then a conviction for Misuse of Official Information in Texas is punished as a Felony of the Third Degree,^[4] with a maximum possible fine under Texas state law of up to $10,000 and prison time of up to 10 years. Learn about the differences between grades of felonies and misdemeanors here.

Can you get probation for Misuse of Official Information in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Misuse of Official Information, and judges are also allowed to accept deferred adjudication plea deals.^[5]

Note, however, that no matter the offense, neither judges nor juries may recommend community supervision for any suspended sentence of over 10 years.^[6] 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.^[7]

What level of crime is Misuse of Official Information in Texas?

The Penal Code classifies Misuse of Official Information as either a Class C misdemeanor or third 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 §39.06. This law is current as of the 88th Legislature Regular Session.^2. Code of Criminal Procedure 12.02(a)^3. See Code of Criminal Procedure 12.01(9)^4. Texas Penal Code §36.09(e)^5. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102 .^6. Art. 42A.053(c), Texas Code of Criminal Procedure^7. Art. 42A.054(b), Texas Code of Criminal Procedure