law-conversion-of-money | conversion of property generally | theft | Texas Theft Liability Act | TTLA

Conversion of Money (as opposed to tangible property)

"Under Texas law, conversion is the wrongful exercise of dominion and control over another's property in
violation of the property owner's rights." ITT Commercial Fin. Corp. v. Bank of the W., 166 F.3d 295, 305 (5th
Cir.1999) (citing Amarillo Nat'l Bank v. Komatsu Zenoah Am., Inc., 991 F.2d 273, 274 (5th Cir.1993); Tripp Vill.
Joint Venture v. MBank Lincoln Ctr., N.A., 774 S.W.2d 746, 750 (Tex. App.—Dallas 1989, writ denied)); accord
Mayo v. Hartford Life Ins. Co., 354 F.3d 400, 410 (5th Cir.2004); Carson v. Dynegy, Inc., 344 F.3d 446, 456 (5th
Cir.2003); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 211 n. 44 (Tex.2002); Bandy v. First State
Bank, 835 S.W.2d 609, 622 (Tex.1992). "Texas jurisprudence holds that money can be the subject of
conversion, but only when it is in the form of specific chattel, such as old coins, or when the money is delivered
to another party for safekeeping, the keeper claims no title, and the money is required and intended to be
segregated, either substantially in the form in which it was received or as an intact fund.'" Mitchell Energy Corp.
v. Samson Res. Co., 80 F.3d 976, 984 (5th Cir.1996) (quoting Dixon v. State, 808 S.W.2d 721, 723 (Tex.App.—
Austin 1991, writ dism'd w.o.j.)); see Phippen v. Deere & Co., 965 S.W.2d 713, 724 (Tex.App.— Texarkana
1998, no pet.); Newsome v. Charter Bank Colonial, 940 S.W.2d 157, 161 (Tex.App.—Houston [14th Dist.] 1996,
writ denied) (citing Estate of Townes v. Townes, 867 S.W.2d 414, 419-20 (Tex. App.—Houston [14th Dist.]
1993, writ denied)); Edlund v. Bounds, 842 S.W.2d 719, 727 (Tex.App.—Dallas 1992, writ denied). "From its
nature the title to money passes by delivery, and its identity is lost by being changed into other money or its
equivalent in the methods ordinarily used in business for its safekeeping and transmission." Story v. Palmer,
284 S.W. 331, 332 (Tex.Civ.App.—E1 Paso 1926, no writ) 708 (citations omitted); accord Graham v. Turner,
472 S.W.2d 831, 839 (Tex.Civ. App.—Waco 1971, no writ). Thus, a cause of action for conversion fails when
the plaintiff cannot trace the exact funds claimed to be converted, making it impossible to identify the specific
monies in dispute. See Insurance Co. of N. Am. v. Hickman, No. 05-99-01162-CV, 2000 WL 1207138, at *4 (Tex.
App.—Dallas Aug.25, 2000, no pet.).
SOURCE: TAYLOR PIPELINE CONST. v. Directional Road Boring, 438 F. Supp. 2d 696 - US: Dist. Court, ED
Texas"It is well settled that money can be a subject of conversion only if it can be described or identified as a
specific chattel, but not where an indebtedness can be discharged `by a payment of money generally." Bobby
Smith Brokerage, Inc. v. Bones, 741 S.W.2d 621, 623 (Tex.App.— Fort* Worth 1987, no writ); accord Mitchell
Energy Corp., 80 F.3d at 984; Phippen, 965 S.W.2d at 724. "`When an indebtedness can be discharged by
payment of money generally, an action in conversion is inappropriate.'" Edlund, 842 S.W.2d at 727 (quoting
Eckman v. Centennial Say. Bank, 757 S.W.2d 392, 398 (Tex.App.— Dallas 1988, writ denied)); accord Bobby
Smith Brokerage, Inc., 741 S.W.2d at 623; see Gronberg v. York, 568 S.W.2d 139, 144-45 (Tex.Civ.App.—Tyler
1978, writ ref'd n.r.e.) (denying recovery on theory of conversion when plaintiff alleged funds were wrongfully
withheld from his commissions due under employment contract because plaintiff did not seek return of specific
money but was only seeking repayment of money generally).

Plaintiff, in this case, seeks relief from Defendants for the alleged conversion of $99,947.88, which is the total
amount of money invoices # 1588, # 1699, and # 1742 show as being due. Taylor, however, has adduced no
evidence of an agreement between Taylor and P.D.G. or Hypower which required Taylor's eventual
compensation to be kept segregated or maintained in any particular form. See Phippen, 965 S.W.2d at 724.
Rather, Taylor's contract with DRB states "[n]othing contained herein shall require money to be placed in a
separate account and not commingled with money of the Contractor or Subcontractor. . . ." Moreover, unlike
funds represented by a settlement check or captured by a writ of garnishment, the sum of money at issue in this
case cannot be described or identified as a specific chattel. See Newsome, 940 S.W.2d at 161; Barraza v. Law
Offices of Smith & Gopin, 918 S.W.2d 608, 611 (Tex.App.—El Paso 1996, no writ). The $99,947.88 in dispute is
properly characterized as an alleged amount of indebtedness capable of being discharged by the payment of
money generally. See Rente Co. v. Truckers Express, Inc., 116 S.W.3d 326, 332 (Tex.App.— Houston [14th
Dist.] 2003, no pet.). Accordingly, Taylor's claim for conversion must fail as a matter of law. See id.

Even if the $99,947.88 constituted a specific chattel, Plaintiff's claim still cannot succeed. Conversion involves
the taking of property without the owner's consent. See Mack v. Newton, 737 F.2d 1343, 1354 (5th Cir.1984);
Bernstein v. Portland Say. & Loan Ass'n, 850 S.W.2d 694, 711 (Tex.App.—Corpus Christi 1993, writ denied).
Hence, if the property owner expressly or impliedly assented to the taking or disposition of the property, the
owner may not maintain a claim for conversion. See Pan E. Exploration Co. v. Hufo Oils, 855 F.2d 1106, 1125
(5th Cir.1988); Mack, 737 F.2d at 1354; Robinson v. National Autotech, Inc., 117 S.W.3d 37, 39-40 (Tex. App.—
Dallas 2003, pet. denied); Conlee Seed Co. v. Brandvik, 526 S.W.2d 795, 798 (Tex.Civ.App.—Amarillo 1975, no