Misapplication of fiduciary property is a criminal offense that was created in order to protect the beneficiaries of trusts, estates, and receiverships. Individuals commit this offense if they intentionally, knowingly, or recklessly misapply property that they hold as a fiduciary in a way that creates a substantial risk of loss to the owner of the property. A substantial risk of loss simply means that it is “more likely than not” that loss to the owner of the property will occur.
Persons who act as fiduciaries have the authority to possess and/or handle property belonging to others under a law or a legally valid agreement. According to Tex. Pen. Code § 32.45, a fiduciary includes persons in the following positions:
• Trustees, guardians, administrators, executors, conservators, and receivers
• Attorneys in fact or agents appointed under durable powers of attorney
• Any other persons acting in a fiduciary capacity
• Officers, managers, employees, or agents carrying on fiduciary functions on behalf of a fiduciary
The level of the charge of the misapplication of fiduciary property offense and the resulting penalties is largely dependent on the value of the property that the fiduciary has misapplied. However, if the person harmed by the offense is an elderly person, then the level of the offense automatically increases to the next higher level.
Therefore, this offense ranges from a Class C misdemeanor charge for the misapplication of property valued at less than $100 to a felony of the first degree charge if the value of the misapplied property is $300,000 or more. As is the case with many theft and fraud crimes under Texas law, this offense generally does not become a felony offense until the value of the misapplied property is worth more than $2,500.
The criminal defense lawyers of Peek & Toland have handled the legal defense of countless individuals who are facing criminal charges. We are here to protect your rights and advocate on your behalf in order to get the best outcome possible in your case. Call our office today at (512) 474-4445 to set up an appointment with our criminal defense attorneys today.