Abuse by a public servant of his or her office, government property and the power inherent in their position has become a popular political topic recently. Abuse of office can refer to any action by an individual in public office where he or she uses their position to gain some unlawful benefit or to defraud another. It can also be a circumstance where the public servant uses his or her power to commit specific acts of mistreatment they know are unlawful against another person.
There is absolutely no question that public servants should be held to a high standard and accountable to the public and under the law for their actions. However, no one should discount the fact that anyone can make an unfounded allegation against a public servant, not because a crime was committed, but for political reasons. The political atmosphere can be very venomous at times.
People are quick to judge, and often draw conclusions, not based on the evidence or an impartial investigation, but based on rumors and the desires of some for controversy. For those in public service, they find allegations against them being litigated in the media, instead of a courtroom. They are often convicted on the front page of the paper and the public domain before they have ever had their case investigated or litigated in a court of law.
If you are a public servant and charged with a crime related to your job, you need representation from a lawyer who understands the dynamics of public service, the law related to abuse of office cases, and how to refocus your case from the media to the courtroom.
Here are two common examples of abuse of office:
A public servant commits this offense if, with intent to obtain a benefit or with intent to harm or defraud another, he or she intentionally or knowingly (1.) violates a law relating to the public servant’s office or employment, or (2.) misuses government property, services, personnel or any thing of value belonging to the government that has come into the public servant’s possession by virtue of his or her job.
This offense is a Class A misdemeanor if the person, with intent to obtain a benefit or with intent to harm or defraud another, intentionally or knowingly violates a law relating to the public servant’s office or employment.
Abuse of official capacity can be charged anywhere from a Class C misdemeanor to a first degree felony, depending on the value, when the person, acting with intent to obtain a benefit or with intent to harm or defraud another, intentionally or knowingly misuses government property, services, personnel or anything of value belonging to the government that has come into the public servant’s possession by virtue of his or her job.
One of the first things that must be investigated in these types of cases is whether the thing of value was truly government property. For example, the statute specifically enumerates that a discount or award given for travel is not something of value belonging to the government. So, frequent flyer miles and hotel and rental car discounts are not a thing of value to the government.
What the true “value” of the government property in question is must be investigated and accurately determined. The defense lawyer must investigate the true market value of the government property or service in question. This can be the difference between a misdemeanor and felony charge.
The defense should closely scrutinize the prosecutor’s allegation of whether the public servant had any intent to even obtain a benefit or harm or defraud another. This is the heart of this offense. If the prosecutor cannot prove this beyond all reasonable doubt, no offense has been committed
This offense occurs when a public servant acting under color of his office or employment: (1.) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment or lien that he knows is unlawful; (2.) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful; or (3.) intentionally subjects another to sexual harassment.
A public servant “acting under color of his office” simply means he is acting or purports to be acting in an official capacity.
Obviously, the area that should be subjected to the most scrutiny by defense lawyers is whether the public servant charged “knew their conduct was unlawful”. The is something that must absolutely be proven by the prosecutors beyond a reasonable doubt. This can be a grey area and makes these types of cases potentially hard to prosecute. For example, say a judge performs an act within his power as a judge and signs a warrant for a person’s arrest believing his court had jurisdiction. The judge later learns that his Court did not have jurisdiction to sign the warrant, but at the time he signed it, he thought his court did. The courts have held in Palacios vs. State, that the judge is not criminally liable in that situation.
If you are a public servant and are facing any charges concerning the abuse of office, please give Attorney Matt Bingham a call to schedule a legal consultation and discuss the details of your case.
© The Law Offices of D. Matt Bingham, PLLC
Responsive website by GroupM7 Design™
Fax: (903) 600-6818
Address: 2203 Oak Alley
Tyler, Texas 75703