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Texas Theft and Conversion

©2014 Mark Courtois and Diane Davis

A conversion of personal property occurs upon the unauthorized and wrongful assumption and exercise of dominion and control over the personal property of another to the exclusion of, or inconsistent with, the owner's rights. Pipes v. Hemingway, 358 S.W.3d 438, 449-50 (Tex. App.--Dallas 2012, no pet.). There is a common law claim for conversion as well as a Texas statutory cause of action.

Common Law Civil Conversion. There are four elements to the claim: (1) Plaintiff owned, had legal possession of, or was entitled to possession of the property; (2) Defendant assumed and exercised dominion and control over the property in an unlawful and unauthorized manner, to the exclusion of and inconsistent with plaintiff's rights; (3) Plaintiff made a demand for the property; (4) Defendant refused to return the property. Apple Imports, Inc. v. Koole, 945 S.W.2d 895, 899 (Tex. App.--Austin 1997, writ denied); see also Whitaker v. Bank of El Paso, 850 S.W.2d 757, 760 (Tex. App.--El Paso 1993, no writ). Conversion of intangible property is limited to cases "where the underlying intangible right has been merged into a document." Neles-Jamesbury, Inc. v. Bill's Valves, 974 F. Supp. 979, 982, (S.D. Tex. 1997). The limitations period for a claim of conversion is two years. Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a).

Texas Theft Liability Act. The Texas Theft Liability Act provides that a person who commits a theft is liable for damages resulting from the theft. Tex. Civ. Prac. & Rem. Code Ann. § 134.003(a). A parent or guardian who has a duty of control and reasonable discipline of a child may also be held liable for a theft commited by the child. Id. § 134.003(b). A person found to have commited theft can be forced to pay back the plaintiff's damages sustained from the theft and and a sum not to exceed $1,000. Id. § 134.005(a)(1). In the case of a child the parent or gaurdian can be forced to pay actual damages plus a sum not to exceed $5,000. Id. § 134.005(a)(2). The prevailing party in case under this statute shall also recover court cots and reasonable and necessary attorney's fees. Id. § 134.005(b).

Theft under this statute refers to specific Texas Penal Code definitions. Tex. Civ. Prac. & Rem. Code Ann. §§ 134.002; Tex. Penal Code Ann. §§.31.03-.07, 31.11-.14. Under the Texas Penal Code, a person commits the offense of theft if he "unlawfully appropriates property with intent to deprive the owner of property" without the owner's "effective consent." Tex. Penal Code Ann. § 31.03(a)-(b). "Appropriate" is defined under the Penal Code as "to bring about a transfer or purported transfer of title to or other nonpossessory interest in property, whether to the actor or another" or "to acquire or otherwise exercise control over property other than real property." Id. §.31.01(4). "A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result." Tex. Penal Code Ann. §.6.03(a) (Vernon 2011). An "owner" is "a person who . . . has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor[.]" Byrd v. State, 336 S.W.3d 242, 251 (Tex. Crim. App. 2011) (citing Tex. Penal Code Ann. § 1.07(a)(35)(A).