Section 39-16-402 - Official misconduct(a) A public servant commits an offense who, with intent to obtain a benefit or to harm another, intentionally or knowingly:(1) Commits an act relating to the public servant's office or employment that constitutes an unauthorized exercise of official power;(2) Commits an act under color of office or employment that exceeds the public servant's official power;(3) Refrains from performing a duty that is imposed by law or that is clearly inherent in the nature of the public servant's office or employment;(4) Violates a law relating to the public servant's office or employment; or(5) Receives any benefit not otherwise authorized by law.(b) For purposes of subdivision (a)(2), a public servant commits an act under color of office or employment who acts or purports to act in an official capacity or takes advantage of the actual or purported capacity.(c)(1) For purposes of subdivision (a)(5), the ways in which a public servant receives a benefit not otherwise authorized by law include, but are not limited to, a public servant who: (A) Purchases real property or otherwise obtains an option to purchase real property with intent to make a profit if the public servant knows that such real property may be purchased by a governmental entity and such information is not public knowledge; or(B) Acquires nonpublic information derived from such person's position as a public servant or gained from the performance of such person's official duties as a public servant and knowingly acts on such nonpublic information to acquire, or obtain an option to acquire, or liquidate, tangible or intangible personal property with intent to make a profit.(2) Ouster provisions shall be instituted upon a conviction under subsection (a) in which the conduct described in subsection (c) is the basis of the violation. In addition any person convicted of such offense shall forever afterward be disqualified from holding any office under the laws or constitution of this state.(d) It is a defense to prosecution for this offense that the benefit involved was a trivial benefit incidental to personal, professional or business contact, and involved no substantial risk of undermining official impartiality.(e)(1) An offense under subsection (a) in which the conduct described in subsection (c) is not the basis of the violation is a Class E felony.(2) An offense under subsection (a) in which the conduct described in subsection (c) is the basis of the violation is a Class A misdemeanor and the court shall order appropriate restitution to the governmental entity harmed by the offense.(3) If the defendant's conduct violates this section and other criminal statutes, nothing in this subsection (e) shall be construed as prohibiting prosecution and conviction for theft or any other such applicable offense in addition to or in lieu of prosecution and conviction for a violation of this section.(f) Charges for official misconduct may be brought only by indictment, presentment or criminal information; provided, that nothing in this section shall deny a person from pursuing other criminal charges by affidavit of complaint.Acts 1989, ch. 591, § 1; 1990, ch. 980, § 10; 2012, ch. 966, §§ 1, 2.