                       The Attorney                  General              of Texas
                                               May        10,     1978
JOHN   L. HILL
Attorney General


                   Honorable Ben Z. Grant                                 Opinion No. H- 1165
                   Chairmen
                   House Judiciary Committee                              Re: Use of public property      or
                   State Capitol                                          services for private benefit.
                   Austin, Texas 78711

                   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 Govern-
                               ment 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 9780 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      This article   was repealed   with the passage of the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 9780
                   intended     to lift criminal   sanctions   from such conduct.       The Legislature
                   consolidated    such offenses    under Penal Code chapter       31, which concerns
                   theft.




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   Honorable Ben Z. Grant    -   Page 2         (H-1165)



          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 3LO4 of the Penal Code.

                                     SUMMARY

              Use of public property, labor, or services by a public official
              or employee for private benefit constitutes the offense of
              theft.


                                          m-Y-&$


                                          .’ I
                                      ; ,/        Attorney General of Texas

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   DAVID M. KENDALL. First Assistant




   C. ROBERT HEATH. Chairman
   Opinion Commitiee

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