The state accuses the defendant of having committed the offense of misapplication of fiduciary property.

Relevant Statutes

A person commits the offense of misapplication of fiduciary property if he intentionally, knowingly, or recklessly misapplies property he holds as a fiduciary in a manner that involves substantial risk of loss to [the owner of the property/a person for whose benefit the property is held].

Definitions

Fiduciary

A “fiduciary” is a person who creates by his own undertaking a duty to act primarily for another individual’s benefit in that undertaking. This occurs when the person receives money, contracts a debt, or handles property not belonging to him, not for his benefit, but for another individual’s benefit. The transaction must be conducted for the benefit of another individual to whom the person stands in a relation implying and necessitating great confidence and trust and a high degree of good faith.

Among those who may be fiduciaries are—

1. a trustee, guardian, administrator, executor, conservator, and receiver;
2. an attorney in fact or agent appointed under a durable power of attorney as provided by subtitle P, title 2, of the Texas Estates Code; and
3. an officer, manager, employee, or agent carrying on fiduciary functions on behalf of a fiduciary.

“Fiduciary” does not include a commercial bailee [unless the commercial bailee is a party in a motor fuel sales agreement with a distributor or supplier].

Commercial Bailee

A “bailee” is a person to whom another gives temporary possession of property for a specific purpose under an agreement that when the purpose is accomplished the property will be returned, kept until claimed, or disposed of in a specified way. A person is a commercial bailee if that person acts as a bailee for a fee or otherwise as part of the person’s business.

Misapply Property

A person who is a fiduciary misapplies property held as a fiduciary if the person deals with that property contrary to—

1. an agreement under which the fiduciary holds the property; or
2. a law prescribing the custody or disposition of the property.

Law

“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.

Intentionally Misapply Property

A person intentionally misapplies property the person holds as a fiduciary if the person has the conscious objective or desire to deal with the property contrary to—

1. the agreement under which the person holds the property as a fiduciary; or
2. a law prescribing the custody or disposition of the property the person holds as a fiduciary.

Knowingly Misapply Property

A person knowingly misapplies property the person holds as a fiduciary if the person is aware that his dealing with the property is contrary to—

1. the agreement under which the person holds the property as a fiduciary; or
2. a law prescribing the custody or disposition of the property the person holds as a fiduciary.

Recklessly Misapply Property

A person recklessly misapplies property the person holds as a fiduciary if the person is aware of but consciously disregards a substantial and unjustifiable risk that his dealing with the property is contrary to—

1. the agreement under which he holds the property as a fiduciary; or
2. a law prescribing the custody or disposition of the property the person holds as a fiduciary.

The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.

Application of Law to Facts

You must decide whether the state has proved, beyond a reasonable doubt, four elements. The elements are that—

1. the defendant, in [county] County, Texas, on or about [date], intentionally, knowingly, or recklessly misapplied property owned by [name] by [insert specific allegations, e.g., dealing with that property, namely money, contrary to the agreement under which the defendant held the property by using the money to purchase liquor for the defendant’s personal consumption]; and
2. the defendant held that property as a fiduciary; and
3. the misapplication was done in a manner that involved a substantial risk of loss to [name], the owner of the property; and
4. the value of the misapplied property was $[amount] or more.

You must all agree on elements 1, 2, 3, and 4 listed above.

If you all agree the state has failed to prove, beyond a reasonable doubt, one or more of elements 1, 2, 3, and 4 listed above, you must find the defendant “not guilty.”

If you all agree the state has proved, beyond a reasonable doubt, each of the four elements listed above, you must find the defendant “guilty.”

[Insert any other instructions raised by the evidence. Then continue with the verdict form found in CPJC 2.1, the general charge.]