Office of the Attorney General
Honorable Ben Z. Grant
Opinion No. H-1165
Re: Use of public property or services for private benefit.
Dear Representative Grant:
The Judiciary Committee has requested an opinion as to whether:
1. an elected official, employee, or appointee of the State, County or Municipal Government can use for private profit or benefit to himself, any property, supplies, equipment, or other things of value belonging to the State, County or Municipalities, and
2. Whether or not elected officials, employees or appointees of the State, County or Municipal Government can knowingly use or knowingly permit to be used for private profit to himself the labor or services of any person whose labor or services is paid for by the State, County or Municipal Government.
Your inquiry is prompted perhaps by the repeal of article 978o of the former Penal Code. This article expressly prohibited such official misconduct, assessing a maximum penalty of a one thousand dollar ($1,000) fine and two years imprisonment. This article was repealed with the passage of the current Penal Code. Acts 1973, 63rd Leg., ch. 399, s 3, at 993.
The misconduct about which you inquire is clearly prohibited by current law and there is no implication that the Legislature in repealing article 978o intended to lift criminal sanctions from such conduct. The Legislature consolidated such offenses under Penal Code chapter 31, which concerns theft.
Misappropriation of public property by public employees or officials for private benefit constitutes theft under section 31.03 of the Penal Code if there is intent to exercise unlawful control over property owned by the state or other governmental entity. Similarly, misuse of public labor or services for private benefit constitutes theft of service under section 31.04 of the Penal Code.
Use of public property, labor, or services by a public official or employee for private benefit constitutes the offense of theft.
Very truly yours,
John L. Hill
Attorney General of Texas
David M. Kendall
C. Robert Heath
Chairman Opinion Committee