Opinion No. 93-665 (1993) ( 1993 )

REPRESENTATIVE DUNEGAN HAS ASKED ME TO RESPOND TO YOUR LETTER REQUESTING INFORMATION ON THE OKLAHOMA EMBEZZLEMENT STATUTES. AS YOU MAY OR MAY NOT KNOW, THE ATTORNEY GENERAL FUNCTIONS AS THE LEGAL ADVISOR TO THE STATE, THE LEGISLATURE, AND VARIOUS STATE BOARDS, AGENCIES AND COMMISSIONS. AS SUCH, WE ARE SIMPLY NOT AUTHORIZED TO GIVE LEGAL ADVISE TO PRIVATE CITIZENS. HOWEVER, I WILL ATTEMPT TO ADDRESS YOUR QUESTIONS TO THE EXTENT I AM ALLOWED.

YOU FIRST ASKED WHAT FACTS ARE NECESSARY TO CONSTITUTE EMBEZZLEMENT. EMBEZZLEMENT IS DEFINED GENERALLY IN 21 Ohio St. 1451 (1991) AS THE FRAUDULENT APPROPRIATION OF PROPERTY BY A PERSON TO WHOM IT HAS BEEN ENTRUSTED. SECTIONS 21 Ohio St. 1452 — 21 Ohio St. 1456 SPECIFICALLY DEFINE EMBEZZLEMENT DEPENDING UPON THE STATUS OF THE EMBEZZLER, I.E. OFFICER OF A CORPORATION, CARRIER, TRUSTEE, BAILEE, OR CLERK OR SERVANT. YOU HAVE ALSO REFERENCED EMBEZZLEMENT OF TRUST FUNDS UNDER 42 Ohio St. 152/42 O.S. 153 (1991), WHICH PERTAIN TO EMBEZZLEMENT IN THE MECHANICS AND MATERIALMEN LIEN CONTEXT. WHETHER THE CIRCUMSTANCES IN A GIVEN SITUATION CONSTITUTE EMBEZZLEMENT UNDER ANY OF THESE STATUTORY PROVISIONS IS A QUESTION OF FACT WHICH CANNOT BE ANSWERED BY OUR OFFICE.

THE RESPONSIBILITY FOR PROSECUTING EMBEZZLEMENT CHARGES FALLS UPON THE DISTRICT ATTORNEY AS ENUMERATED IN 19 Ohio St. 215.4 (1992). THE ATTORNEY GENERAL CANNOT ACT ON BEHALF OF AN INDIVIDUAL OR CORPORATION, AND, AS SET FORTH IN 74 O.S. 18B(A), MAY PROSECUTE OR DEFEND ACTIONS ONLY WHEN THE STATE IS AN INTERESTED PARTY.

(JUDY TERRY)