PJC Business

PJC 115.45

D AMAGES

Substantial risk of loss. The definition of “substantial risk of loss” is derived from Bynum v. State , 767 S.W.2d 769, 774–75 (Tex. Crim. App. 1989), and Casillas v. State , 733 S.W.2d 158, 163–64 (Tex. Crim. App. 1986), appeal dismissed , 484 U.S. 918 (1987) . See also Aiken v. State , 36 S.W.3d 131, 133 (Tex. App.—Austin 2000, no pet.). Fiduciary. The defendant must be a fiduciary for the conduct described in Tex. Penal Code §32.45 to apply. “Fiduciary” is defined there as including (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 title 2, subtitle P, of the Texas Estates Code; (3) “any other person acting in a fiduciary capacity, but not a commercial bailee unless the commercial bailee is a party in a motor fuel sales agreement with a distributor or supplier,” as those terms are defined in Tex. Tax Code §162.001; and (4) “an officer, manager, employee, or agent carrying on fiduciary functions on behalf of a fiduciary.” Tex. Penal Code §32.45(a)(1). “[A]ny other per son acting in a fiduciary capacity” embraces all fiduciaries, not just the categories of fiduciaries enumerated in Tex. Penal Code §32.45(a)(1). Berry v. State , 424 S.W.3d 579, 585 (Tex. Crim. App. 2014). If the existence of such a fiduciary relationship is disputed, a preliminary question should be submitted, and PJC 115.45 should be made conditional on a “Yes” answer to that question. See Schiller v. Elick , 240 S.W.2d 997, 999 (Tex. 1951) (dispute whether defendant was plaintiff’s agent). Misapplication of property of financial institution. If the defendant is alleged to have misapplied property of a financial institution instead of fiduciary property, the question should be amended to read as follows: QUESTION ______ Did Don Davis knowingly or intentionally misapply property of ABC Bank in a manner that involved substantial risk of loss to ABC Bank [ and was the value of the misapplied property $2,500 or greater ]? “Misapply” means to deal with property contrary to a law pre scribing the custody or disposition of the property. “Substantial risk of loss” means it is more likely than not that loss will occur. A person acts knowingly, or with knowledge, with respect to the nature of his conduct when he is aware of the nature of his conduct. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

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