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Background.  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).

Theft and Conversion

©2014 Mark Courtois

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