”Abuse of Official Capacity” Elements In Texas Law

A person commits the offense of abuse of official capacity if, as a public servant and with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly violates a law relating to the public servant's office or employment. See TEX. PEN. CODE ANN. § 39.02(a)(1) (Vernon 1999).

"Law" in this context means a law that specifically applies to a person acting in the capacity of a public servant and that directly or indirectly imposes a duty on the public servant or governs the conduct of the public servant. TEX. PEN. CODE ANN. § 39.01(1)(A)(B) (Vernon 1999).

"Law" is further defined as "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." TEX. PEN. CODE ANN. § 1.07(a)(30) (Vernon 1999).

"'Public servant' means a person, elected, selected, appointed, employed, or otherwise designated as . . . an officer, employee, or agent of government." TEX. PEN. CODE ANN. § 1.07(a)(41)(A) (Vernon 1999).

"Harm" is defined as "anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested." TEX. PEN. CODE ANN. § 1.07(a)(25) (Vernon 1999).

"Defraud" is not defined in the Penal Code.

Generally, pleading in the language of the statute which creates and defines the offense charged is sufficient. Thomas v. State, 621 S.W.2d 158 (Tex. Cr. App. 1981); see also Parr v. State, 575 S.W.2d 522 (Tex. Cr. App. 1979).

If the statutory language is completely descriptive of the offense so as to inform the accused of the charge against them, tracking the statutory language would be sufficient; however, if the statutory language is not completely descriptive so that greater particularity is required, then merely tracking the statute would be insufficient. See Haecker; Doyle; see also Amaya v. State, 551 S.W.2d 385 (Tex. Cr. App. 1977); Miller v. State, 677 S.W.2d 737, 741-42 (Tex. App. - Corpus Christi 1984, no pet.).