Johnson, J., concurring.

Appellant was charged under former Tex. Pen. Code § 39.01(a)(2). At the time that the alleged criminal conduct took place, that section was titled “Official Misconduct” and read:

(a) A public servant commits an offense if, with intent to obtain a benefit or with intent to harm another, he intentionally or knowingly:
(1) . . .
(2) misapplies any thing of value belonging to the government that has come into his custody or possession by virtue of his office or employment.

Act of May 27, 1983, 68^th Leg., R.S., ch. 558, 1983 Tex. Gen. Laws 3237. The indictment plead an amount of loss to the State of Texas which placed the charged offense in the range of a third- degree felony. After changes by the Legislature in the 1993 session, §39.01 became definitions, the former §39.01 was renumbered as §39.02, and “Official Misconduct” became “Abuse of Official Capacity.” The changes became effective on September 1, 1994, slightly more than one year after the charged offense occurred. The newly-named offense now reads:

(a) A public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly;
(1) . . .
(2) misuses government property services, personnel, or any other thing of value belonging to the government that has come into the public servant’s custody or possession by virtue of the public servant’s office or employment.

Under the new statute, the amount alleged falls into the range of a Class A misdemeanor.

It is apparent from the opinion of the court of appeals that, rather than using the version of the statute under which appellant was indicted and convicted, it used the current version of the statute in its analysis. This version of the statute was passed by the legislature in 1993 and became effective September 1, 1994.. This is no mere “mis-cite.” I am unable to discover anywhere in the court of appeals’ opinion a citation to the correct version of the statute.

The court of appeals begins by discussing appellant’s conviction for official misconduct under § 39.02(a)(2) (Vernon 1994). Margraves v. State, 996 S.W.2d 290, 292-3, 299 (Tex. App.– Houston [14^th Dist] 1999). Under the former statute, § 39.02(a)(2) was “Official Oppression,” while in the current version, it is “Abuse of Official Capacity.”

The confusion continues as the court of appeals indicates that the offense is a third-degree felony. The former § 39.02 was a Class A misdemeanor, as is the current § 39.02. The offense alleged under the former § 39.01 was, in fact, a third-degree felony.

Further evidence of use of the incorrect version of the statute appears in the court of appeals’ analysis of the issues, in which it sets out the statute that it is construing and quotes the text of the current version of § 39.02(a)(2). Margraves, 996 S.W.2d at 299. This is error. The issue then becomes whether such error requires a remand to the court of appeals to reconsider its analysis under the proper statute.

Paragraph (a) of each statute differs from the other only by the addition in the current version of the words “or defraud” to the original phrase, “to harm.” “Harm” is defined in §1.07(25) as “anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested.” “Defraud” is used in many criminal statutes, most often in conjunction with “harm,”¹ but is itself not defined. We are therefore to use the common meaning. Tex. Gov’t Code § 311.011(a). An entry in a thesaurus gives the synonyms of dupe, swindle, cheat, or deceive. Webster’s New World Thesaurus 323 (3d ed. 1997). “Defraud,” then appears to be a specific way of causing “harm.” I believe that the addition of “or defraud” does not materially alter the meaning of the statute and thereby invalidate the analysis of paragraph (a) by the court of appeals.

Subparagraph (a)(2) differs more in wording, but, if looked at using common usages of the words, differs very little in substance:

(1) “Misapplies” becomes “misuses;” misuse (n.) is listed in the thesaurus as a synonym for misapplication. Webster’s New World Thesaurus 507.

(2)The earlier statute includes “any thing of value;” the current statute lists specific things of value and concludes the list with “any other thing of value.” The change in the current statute thus appears merely to list specific things which are of value and subject to misuse and does not alter materially the meaning of the former statute.

(3) The last change converts “his” into “the public servant’s” in two places. This also appears to be clarification rather than a material alteration of the statute.

I therefore believe that, because the various changes did not materially alter the statute, the analysis of the court of appeals, which used the incorrect version of the statute, would have been no different under the correct statute. We may therefore review the court of appeals’s decision without remanding the cause to the court of appeals for re-analysis under the correct statute. For the reasons stated in the majority opinion, I agree that the evidence was sufficient to sustain the conviction.

Appellant also raised the question of whether the statute was unconstitutionally vague as applied to him. The court of appeals spoke in general of terms of what must be shown before a statute may be declared unconstitutionally vague. Margraves, 996 S.W.2d 302-3. When it ruled on appellant’s complaint, however, it stated twice, in consecutive paragraphs, that it found the statute “unconstitutionally vague as applied to the facts of this case,” and “strictly limited to the facts of this case.” Id. at 304. Thus, our review must be of the holding that the statute is unconstitutional as applied to appellant.

The court of appeals’ decision rests on its definitions of “mixed use” and “misuse” in a mixed- use context, i.e., that misuse can be proved in a mixed-use context only by proof that the personal portion of the trip resulted in additional costs to the State, no matter the intent or the proportion of personal to business use. Id. at 299-302. Those definitions led to the court of appeals’ holding that the statute was unconstitutionally vague as applied because the statute did not criminalize the court of appeals’ definition of mixed use of state property. Id. at 303-4.

The majority has found fault with the court of appeals’s view of “mixed use” and the standard for determining misuse and remands for “action consistent with [its] opinion.” Rather than addressing the issue of constitutionality as applied to appellant now, I believe that it would be better to remand this cause to the court of appeals for reconsideration of that issue, using the appropriate definitions and standards, after the court of appeals reconsiders its holding on the issue of misuse. I also recognize that there is an credible argument that addressing the issue of constitutionality at this time, as the majority has done, is efficient use of judicial resources.

I concur in the judgment of the Court.

Johnson, J.

Date Delivered: December 6, 2000

Publish
¹See §§ 32.21(a) (defraud or harm), 32.22(a) (defraud or harm), 32.34(b)(2),(3) (defraud or harm), 32.46(a) (defraud or harm), 32.47(a) (defraud or harm), 32.49(a) (defraud or harm), 32.51(b) (defraud or harm), 35.02(a), (b) (defraud or deceive).