Texas Penal Code 32.45 – Misapplication of Fiduciary Property or Property of Financial Institution
Current as of: 2024 | Check for updates
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(a) For purposes of this section:
(1) “Fiduciary” includes:
(A) a trustee, guardian, administrator, executor, conservator, and receiver;
(B) an attorney in fact or agent appointed under a durable power of attorney as provided by Subtitle P, Title 2, Estates Code;
(C) any other person acting in a fiduciary capacity, but not a commercial bailee unless the commercial bailee is a party in a motor fuel sales agreement with a distributor or supplier, as those terms are defined by § 162.001, Tax Code; and
(D) an officer, manager, employee, or agent carrying on fiduciary functions on behalf of a fiduciary.
(2) “Misapply” means deal with property contrary to:
(A) an agreement under which the fiduciary holds the property; or
(B) a law prescribing the custody or disposition of the property.
(b) A person commits an offense if he intentionally, knowingly, or recklessly misapplies property he holds as a fiduciary or property of a financial institution in a manner that involves substantial risk of loss to the owner of the property or to a person for whose benefit the property is held.
Attorney's Note
Under the Texas Codes, punishments for crimes depend on the classification. In the case of this section:| Class | Prison | Fine |
|---|---|---|
| Class A misdemeanor | up to 1 year | up to $4,000 |
| Class B misdemeanor | up to 180 days | up to $2,000 |
Terms Used In Texas Penal Code 32.45
- Benefit: means anything reasonably regarded as economic gain or advantage, including benefit to any other person in whose welfare the beneficiary is interested. See Texas Penal Code 1.07
- Consent: means assent in fact, whether express or apparent. See Texas Penal Code 1.07
- Executor: A male person named in a will to carry out the decedent
- Felony: means an offense so designated by law or punishable by death or confinement in a penitentiary. See Texas Penal Code 1.07
- Fiduciary: A trustee, executor, or administrator.
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Individual: means a human being who is alive, including an unborn child at every stage of gestation from fertilization until birth. See Texas Penal Code 1.07
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Law: means the constitution or a statute of this state or of the United States, a written opinion of a court of record, a municipal ordinance, an order of a county commissioners court, or a rule authorized by and lawfully adopted under a statute. See Texas Penal Code 1.07
- Misdemeanor: means an offense so designated by law or punishable by fine, by confinement in jail, or by both fine and confinement in jail. See Texas Penal Code 1.07
- Owner: means a person who:
(A) has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor; or
(B) is a holder in due course of a negotiable instrument. See Texas Penal Code 1.07 - Person: means an individual or a corporation, association, limited liability company, or other entity or organization governed by the Business Organizations Code. See Texas Penal Code 1.07
- Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
- Property: means real and personal property. See Texas Government Code 311.005
- Prosecute: To charge someone with a crime. A prosecutor tries a criminal case on behalf of the government.
- Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.
- Trustee: A person or institution holding and administering property in trust.
(c) An offense under this section is:
(1) a Class C misdemeanor if the value of the property misapplied is less than $100;
(2) a Class B misdemeanor if the value of the property misapplied is $100 or more but less than $750;
(3) a Class A misdemeanor if the value of the property misapplied is $750 or more but less than $2,500;
(4) a state jail felony if the value of the property misapplied is $2,500 or more but less than $30,000;
(5) a felony of the third degree if the value of the property misapplied is $30,000 or more but less than $150,000;
(6) a felony of the second degree if the value of the property misapplied is $150,000 or more but less than $300,000; or
(7) a felony of the first degree if the value of the property misapplied is $300,000 or more.
(d) An offense described for purposes of punishment by Subsections (c)(1)-(6) is increased to the next higher category of offense if it is shown on the trial of the offense that the offense was committed against an elderly individual as defined by § 22.04.
(e) 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 section that involves the state Medicaid program.