What § 32.53 actually criminalizes
Texas Penal Code § 32.53 punishes financial exploitation — the illegal or improper use of a child, elderly individual, or disabled individual, or of that person's resources, for monetary or personal benefit, profit, or gain. It is a third-degree felony with no monetary threshold.
Texas Penal Code § 32.53 punishes financial exploitation. Subsection (a) defines exploitation as "the illegal or improper use of a child, elderly individual, or disabled individual or of the resources of a child, elderly individual, or disabled individual for monetary or personal benefit, profit, or gain." Subsection (b) makes it an offense to intentionally, knowingly, or recklessly cause that exploitation. Subsection (c) sets the grade: an offense under this section is a felony of the third degree. The same conduct quoted verbatim from the statute appears in the Texas appellate record. See DeLitta v. Schaefer, No. 03-15-00280-CV (Tex. App.—Austin July 20, 2015) (reciting the text of § 32.53(a)–(c)).
The key word is resources. Where most criminal statutes punish taking property by deception or without consent, § 32.53 reaches the broader category of money, accounts, property, benefits, and assets a protected person owns or is entitled to — and it reaches the improper use of those resources even when the accused had some form of access or authority. Because "improper" is not defined in the statute, Texas courts give it its plain meaning: conduct "not in accord with propriety, modesty, good manners, or good taste," or "unbecoming, unseemly; indecorous, indecent." See Cosper v. State, No. 13-22-00038-CR (Tex. App.—Corpus Christi Jan. 26, 2024) (mem. op.). That breadth is exactly why ordinary family money decisions, caregiver spending, and good-faith use of a power of attorney can be recast by the State as a felony.
It is also why the statute should not be confused with physical abuse. A charge under § 32.53 says nothing about whether anyone was hurt. The allegation is about dollars: a withdrawal, a transfer, a check, a deed, a credit card, a change to a beneficiary form. Keeping the case anchored to that financial question — rather than letting it drift into sympathy about a vulnerable complainant — is a core part of the defense.
Who counts as a protected person
Section 32.53 protects three categories defined in Penal Code Chapter 22: a child (14 or younger), an elderly individual (65 or older), and a disabled individual (a functional test). If the complainant does not meet a definition, an element of the offense is missing.
Section 32.53 protects three categories, and the definitions come from Penal Code Chapter 22. They matter because if the complainant does not meet a definition, an element of the offense is missing.
- Child
- A person 14 years of age or younger. Exploitation of a child's resources commonly arises with a minor's trust, settlement proceeds, survivor benefits, or a custodial account.
- Elderly individual
- A person 65 years of age or older. Age alone qualifies the person; the State does not have to separately prove frailty or impairment, although capacity is usually central to whether a use was "improper."
- Disabled individual
- A person older than 14 who by reason of age or physical or mental disease, defect, or injury is substantially unable to protect themselves from harm or to provide food, shelter, or medical care for themselves. This is the most contested category, because "disabled" is a functional test, not a diagnosis — and a person with a disability who fully understands and directs their own finances may fall outside it.
Texas courts have applied these capacity questions in real cases. In Viscaino v. State, 513 S.W.3d 802 (Tex. App.—Houston [14th Dist.] 2017), the court worked through whether a complainant "by reason of advanced age is known by the actor to have a diminished capacity to make informed and rational decisions about the reasonable disposition of property." The lesson for the defense is that the protected-person element and the capacity question are litigable facts — not assumptions the State gets for free.
Punishment range for § 32.53
Exploitation under § 32.53 is a third-degree felony, full stop — 2 to 10 years in prison and a fine up to $10,000 under § 12.34. The offense does not grade by dollar amount, and prior felonies can elevate the range under §§ 12.42 and 12.425.
Exploitation under § 32.53 is a third-degree felony, full stop. Unlike Texas theft, which scales the punishment to the value taken, this offense does not grade by dollar amount — the Corpus Christi court in Cosper expressly noted the offense "has no monetary threshold." A first-time third-degree felony exposes a person to the range below; a record of prior felonies can elevate it under the habitual-offender provisions of Penal Code §§ 12.42 and 12.425.
| Element | Detail |
|---|---|
| Statute | Texas Penal Code § 32.53 |
| Conduct | Causing the illegal or improper use of a protected person or their resources for gain |
| Classification | Third-degree felony (no monetary threshold) |
| Standard range | 2–10 years in prison + fine up to $10,000 (Penal Code § 12.34) |
| One prior felony | Punished as a second-degree felony: 2–20 years (Penal Code § 12.42(a)) |
| Two prior felonies (sequential) | Habitual range: 25–99 years or life (Penal Code § 12.42(d)) |
| Probation-eligible? | Community supervision and deferred adjudication may be available depending on the facts and the defendant's history |
Elements the State must prove
To convict under § 32.53, the State must prove a protected person, a culpable mental state (intentionally, knowingly, or recklessly), the illegal or improper use of resources, and that the use was for monetary or personal benefit — each beyond a reasonable doubt.
Texas appellate courts have laid out the elements of § 32.53 in plain terms. To convict, the State must prove each of the following beyond a reasonable doubt. The Sixth Court of Appeals broke the offense into a seven-part formulation in Erwin v. State, 578 S.W.3d 182 (Tex. App.—Texarkana 2019): the defendant, (2) for monetary or personal benefit, profit, or gain, (3) intentionally, knowingly, or recklessly, (4) caused the exploitation of (5) a protected person, (6) by the illegal or improper use (7) of that person's resources.
- A protected person
- The complainant must actually be a child, elderly individual, or disabled individual within the statutory definitions. This is provable by birth date for age-based categories, but the "disabled individual" category requires evidence of functional inability to self-protect.
- A culpable mental state
- The accused must have acted intentionally, knowingly, or recklessly. Mens rea is rarely proved by direct evidence; it "generally can be established only by inferences from the acts, words, and conduct of the accused," looking at events before, during, and after the transaction. Erwin, 578 S.W.3d at 188.
- Illegal or improper use of resources
- The State must connect a specific transaction — a withdrawal, transfer, purchase, or conveyance — to an improper purpose. In Erwin, the indictment alleged exploitation "by the illegal or improper use of the resources of the elderly person by withdrawing funds from [the complainant's] bank account."
- For monetary or personal benefit
- The use must be for benefit, profit, or gain — ordinarily the accused's own, though the statute is written broadly. Spending a protected person's money for that same person's documented care is not exploitation.
The mental-state element is where many of these cases are won. A fact-finder is "not permitted to come to conclusions based on mere speculation or factually unsupported inferences or presumptions," and "[i]f the evidence at trial raises only a suspicion of guilt, even a strong one, then that evidence is insufficient" to convict. Erwin, 578 S.W.3d at 189. Erwin itself ended in an acquittal on appeal because the State proved a bad outcome but not a guilty mind: a check that later bounced did not establish the defendant knew, at the time, that the account would be closed.
How prosecutors build an exploitation case
Most § 32.53 cases in North Texas start with a bank report or an Adult Protective Services referral, then are built on paper — bank statements, canceled checks, wire records, and beneficiary changes paired with testimony about the protected person's habits and capacity.
Most § 32.53 prosecutions in North Texas start one of two ways: a bank or a family member reports suspected elder financial abuse, or Adult Protective Services opens an investigation and refers it to law enforcement. From there, the case is built on paper. Expect the State to assemble bank statements, canceled checks, wire records, ATM and point-of-sale data, real-estate filings, beneficiary-designation changes, and account-access logs, then pair them with witness testimony about the protected person's habits and capacity.
The pattern that prosecutors look for is a departure from the protected person's normal financial behavior. In Cosper, the State's evidence showed that a $28,000 gift "ran contrary to [the complainant's] typical behavior," that he had been diagnosed with "severe" dementia months earlier, and that the accused later tried to have him declared incompetent — a combination the court found sufficient for a jury to infer improper influence over a person in diminished capacity. The defense answer is to supply the missing context the State's spreadsheet leaves out: the agreement, the standing arrangement, the prior pattern of generosity, the receipts for care, and the medical evidence about what the person could and could not understand on the relevant dates.
Defense strategies
There is no single template for a § 32.53 defense, because these cases turn on records and intent. The strongest strategies are each anchored to an element the State must prove — mental state, authorized use, a genuine gift, capacity, and the protected-person definition.
There is no single template for a § 32.53 defense, because these cases turn on records and intent. The strategies below are the ones that most often move an exploitation case — each is anchored to an element the State must prove.
- No culpable mental state. The transactions happened, but not with intent to exploit. Where the State proves only a questionable result, that is legally insufficient — "mere suspicion," even strong suspicion, will not support a conviction. Erwin, 578 S.W.3d at 189.
- Authorized use. A valid power of attorney, a joint account, a guardianship, or a documented agreement gave the accused authority to act. The defense reframes the spending as authorized rather than "improper."
- Genuine gift. A freely made gift is not illegal or improper use. The State "cannot show that [the accused] acted contrary to an agreement" when the money or property was actually provided as a gift. Cosper, No. 13-22-00038-CR (acquitting on a related count where transfers were voluntary gifts).
- Capacity to consent. If the protected person understood and directed the transaction, the "improper" element fails. Medical records, treating-physician testimony, and contemporaneous documents establish what the person could decide and when.
- The complainant is not a "disabled individual." A person with a disability who can protect themselves and manage their own affairs may fall outside the statutory definition, defeating the protected-person element.
- Account and authorship disputes. Joint accounts, shared cards, and family members with access raise real questions about who actually made a given transfer.
- Reimbursement and accounting. A clean accounting that ties withdrawals to the protected person's documented expenses can dissolve the "for benefit, profit, or gain" element.
Because exploitation charges so often grow out of probate disputes, divorces, and inheritance fights, motive evidence about the accusing family members is frequently relevant and worth developing early.
Power of attorney, joint accounts & caregivers
A durable power of attorney, a joint account, or a caregiver role does not prevent a § 32.53 charge, because the State's theory is about how the authority was used, not whether it existed. The defense in this posture is documentary and disciplined.
The recurring scenario in these cases is a family member or trusted person who already had lawful access to the money. A durable power of attorney, a joint bank account, a representative-payee designation, or simply being the adult child who paid the bills — none of these prevents a § 32.53 charge, because the State's theory is about how the authority was used, not whether it existed.
A power of attorney imposes fiduciary duties under the Texas Estates Code: the agent must act in the principal's interest, keep the principal's property separate, and maintain records. When an agent uses the principal's funds for the agent's own benefit, the State can charge exploitation and, where there is a written agreement, may add misapplication of fiduciary property under Penal Code § 32.45. The defense in this posture is documentary and disciplined: produce the instrument granting authority, the standing arrangement with the principal, and a transaction-by-transaction accounting showing the spending served the principal — or was an authorized gift the principal chose to make while competent.
How § 32.53 differs from injury, theft & fiduciary misapplication
Exploitation sits among several neighboring Texas offenses, and the State will sometimes charge more than one. Understanding the seams — injury (§ 22.04), theft (§ 31.03), fiduciary misapplication (§ 32.45) — is part of defending and negotiating the case.
Exploitation sits among several neighboring Texas offenses, and the State will sometimes charge more than one. Understanding the seams is part of defending the case — and sometimes part of negotiating it down.
| Offense | What it targets | Key difference from § 32.53 |
|---|---|---|
| Injury to a child, elderly or disabled individual (§ 22.04) | Physical or mental harm | Punishes bodily injury, not money — the bodily-harm counterpart to § 32.53 |
| Theft (§ 31.03) | Unlawful appropriation without consent | Grades by value taken; § 32.53 has no dollar threshold and reaches "improper" use even with access |
| Misapplication of fiduciary property (§ 32.45) | Dealing with property contrary to an agreement | Requires a fiduciary relationship and a violated agreement; § 32.53 needs neither |
| Credit card or debit card abuse (§ 32.31) | Unauthorized card use | Card-specific; exploitation is broader and protected-person specific |
| Forgery (§ 32.21) | Creating or passing false writings | Targets the falsity of an instrument; exploitation targets misuse of resources |
The Cosper case is a useful illustration of where these lines fall. The Corpus Christi court affirmed the exploitation conviction (accepting large gifts from a man with severe dementia was improper use) but reversed the misapplication-of-fiduciary-property count, because property given as a genuine gift is not held "contrary to" an agreement under § 32.45. The same facts can support one financial charge and defeat another — which is exactly why charge-by-charge analysis matters.
Where these cases are heard in DFW
As a third-degree felony, a § 32.53 case is filed in a felony district court after grand-jury indictment. From our Frisco office we defend these cases across Collin, Dallas, Denton, and Tarrant counties, with the courthouse set by where the conduct occurred.
As a third-degree felony, a § 32.53 case is filed in a felony district court after indictment by a grand jury. From our Frisco office we defend these cases across the four-county Dallas–Fort Worth area, and the courthouse varies by where the alleged conduct occurred:
- Collin County — felony cases are heard at the Collin County Courthouse (Russell A. Steindam Courts Building) in McKinney. Collin County has an active focus on financial and elder-related cases.
- Dallas County — felonies are handled at the Frank Crowley Courts Building in Dallas, which houses the criminal district courts and a large district attorney's office.
- Denton County — cases are heard at the Denton County Courts Building and the associated criminal courts in Denton.
- Tarrant County — felony matters are heard at the Tim Curry Criminal Justice Center in Fort Worth.
The firm maintains one office — 5899 Preston Rd, Suite 101, Frisco, TX 75034 — and defends cases throughout these counties from there. Where a case began with an Adult Protective Services investigation, that civil investigation often runs in parallel with the criminal matter, and statements made to an APS caseworker can surface later in the criminal case.
What happens after an arrest or APS referral
An exploitation case moves from financial investigation, to arrest and magistration, to grand jury and indictment, through pretrial discovery and forensic accounting, to resolution — with several financial-case wrinkles worth knowing at each stage.
An exploitation case usually moves through these stages, with a few financial-case wrinkles worth knowing:
- Investigation. A bank report, family complaint, or APS referral triggers a financial investigation. Records are subpoenaed before anyone is arrested, which means there is often a window to retain counsel early.
- Arrest and magistration. The accused is booked and brought before a magistrate, informed of the charge, and given bond conditions.
- Bond. Conditions in elder-exploitation cases frequently include no-contact orders with the complainant and restrictions on handling the person's finances.
- Grand jury and indictment. Because this is a felony, the case must be presented to a grand jury. The pre-indictment period is a meaningful chance to submit exculpatory financial records and capacity evidence.
- Pretrial. Discovery, forensic accounting, defense investigation, and motions. Many exploitation cases are effectively decided here, on the paper.
- Resolution. Dismissal, a negotiated outcome, diversion or community supervision where appropriate, or trial.
Collateral consequences
A felony exploitation conviction reaches well past the courtroom — professional licenses, removal as an agent or trustee, firearm rights, immigration status, and employment and housing screening. The goal is frequently to avoid a felony conviction altogether.
A felony exploitation conviction reaches well past the courtroom. Texas licensing agencies can act against professional licenses, particularly for those in healthcare, financial services, and fiduciary roles. A conviction or even a pending charge can lead to removal as an agent under a power of attorney, as a guardian, or as a trustee, and can prompt a probate court to unwind transactions. Under Penal Code § 46.04 and 18 U.S.C. § 922(g), a felony conviction also costs the right to possess a firearm. For non-citizens, a fraud-based felony can carry serious immigration consequences. Employment and housing applications routinely screen for felony theft-and-fraud offenses, which this is.
Because the stakes extend to licenses, family fiduciary roles, and immigration status, the goal is frequently to resolve the matter in a way that avoids a felony conviction altogether — through dismissal, reduction, or an outcome that preserves eligibility for record relief.
Two illustrative scenarios
These composites show how the same facts split into authorized caregiving versus a third-degree felony — the difference turning on improper use, the accused's gain, and the protected person's capacity on the relevant dates.
These hypotheticals are composites for illustration only. They are not real clients and do not predict any outcome.
Scenario 1 — the adult child with a power of attorney. A daughter holds a durable power of attorney for her 78-year-old mother and pays her mother's bills from a joint account. Over a year she also reimburses herself for groceries, gas, and a portion of household costs, and once transfers $9,000 to cover a roof repair on the home she shares with her mother. A sibling who expected a larger inheritance reports "elder financial abuse." The contested question is not whether the daughter touched the money — she plainly did — but whether the spending was improper and made for her own gain rather than her mother's benefit. A transaction-by-transaction accounting, the mother's own statements about the arrangement, and evidence of the mother's capacity are what separate authorized caregiving from a third-degree felony.
Scenario 2 — the disputed gift. An 81-year-old man gives a longtime friend $25,000 to buy a truck. Months later, after a dementia diagnosis, the family alleges exploitation. As Cosper illustrates, the State can argue the "gift" was improper use of resources from a person in diminished capacity; the defense can show the man had capacity on the day of the transfer, understood what he was doing, and chose to make the gift — in which case there is no illegal or improper use at all. Medical records dated to the transaction, witnesses to the conversation, and the absence of any concealment all bear on which story the evidence supports.
