PJC Malpractice 2024

E XEMPLARY D AMAGES

PJC 85.14

money to be “property,” the word “money” should be used if money is involved in the case. 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 as including (1) “a trustee, guard ian, 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 agree ment 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 85.14 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

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