Case Information
*1 The Attorney General of Texas JIM MAlTOX August 15, 1986
Attorney General
Supreme Court Building Austin. TX. 79711.2549 Telex 910/874-1367 [51214752501] Telecopier 5121475~266 P. 0. BOX 12548 Honorable Sam D. Millsap, Jr. Bexar County Courthcuse Criminal District Attorney San Antonio, Texas 78205 RS: Duty of institutions licensed Opinion No. JM-532 under article 4442c, V.T.C.S., to provide a minimum diet to residents
Dear Mr. Millsap: 714 Jackson, Suite 700 Dallas, TX. 75202.4505
You inquire wh@!t:her an institution licensed under article 4442~. 2141742.9944 V.T.C.S., has a dut:r imposed by statute to provide a minimum diet to
its residents. Your question is raised by the fact that the existence of such a duty is mlevant to a prosecutiori of assault by omission 4824 Alberta Ave., Suite 160 under section 22.01(b) of the Penal Code. El Paso, TX. 799052793 [91515353464]
Article 22.01 cf the Penal Code provides, in part, that
r Texas. Suit8 700 (a) A person commits an offense if the person: huuston, TX. 77002~3111 [71312255886] (1) intentionally, knowingly, or reck- lessly causes bodily injury to another, 606 Broadway, Suite 312 including the person's spouse; or Lubbock, TX. 79401-3479 9LW747.5238 (2) intentionally or knowingly threatens
another with imminent bodily injury, including 4309 N. Tenth. Suite S the person's spouse; or McAllen, TX. 75501-1685 5121662.4547 (3) intentionally or knowingly causes
physical contact with another when the person 200 Main Plaza, Suite 4W knows ,317 should reasonably believe that the San Antonio, TX. 792052797 other 1rj.11 regard the contact as offensive or 5121225.4191 provocative. (b) An offense under Subsection (a)(l) of this
An Equal OpportunityI Affirmative Action Employer section Is a Class A misdemeanor unless the offense ir; committed by the owner or an employee of an inrit.itution described in Subsection (a), Section 2, Chapter 413, Acts of the 53rd Legisia- ture, Regul.ar Session, 1953, as amended (Article 4442c, Vernon's Texas Civil Statutes), or a person providing medical or psychiatric treatment at an institution described in that subsection. and the *2 Honorable Sam D. Millsap, Jr. - Page 2 (JM-532)
offense is committed by causing bodily injury to a patient or resident of an institution described in that subsection, in which event the offense is a felony of the third degree.
Under the Penal Code, "conduct" includes an act or omission and "omission" means failure to act. Penal Code §l.O7(a)(8)(23). A person commits an offense cm.ly if he voluntarily engages in conduct, including an act, an omissi~~n, or possession. Penal Code 56.01(a). A person who omits to perform an act does not commit an offense unless a statute provides that the omrission is an offense or otherwise provides that he has a duty to perforn the act. Penal Code 56.01(c). See Ronk -- v. State, 544 S.W.2d 123, 125 '(Tex. Grim, App. 1976). Hence, you inquire if article 4442c, V.T.C.S.. places a duty on an institution licensed under article 44$2c to maintain a minimum diet for its residents. We conclude tha: it does.
Section 1 of article 4,$42c states that the purpose of the act and the licensing agency created by the act is the promotion of public health, safety, and welfare by providing for the development, establishment, and enforxrent of standards for the treatment of individuals in institutions covered by the act. Section 7 of article 4442~ provides, in part, that
[tlhe Licensing Agency is authorized to adopt, amend, promulgatl?, publish and enforce minimum standards in relation to:
. . . .
(d) Diet related to the needs of each resident and based upon good nutritional practice or on recommendations which may be made by the physician attending the resident. . . .
Under the authority of article 4442~. the licensing agency, which is the Texas Department of Ilaalth, has promulgated minimum licensing standards which provide tiat all residents will need, among other things, a food service which provides wholesome and satisfying meals meeting general nutritional needs. See 25 T.A.C. 5145.181(~)(3)(A) (1985). Section 145.182(e)(8) provides in more specificity minimum standards for dietary service. See also 5145.183(e).
Article 4442~ does not itself specify in detail minimum standards for the diet of the residrnts of the institutions, but article 4442~ impliedly requires the licensing agency to adopt standards for diets which will supply the r.utritional needs of the residents. As indicated, a person does nlot commit a criminal offense of omission unless the law creates a duty to act. Article 4442~ creates such a *3 Honorable Sam D. Millsap, Jr. 2 Page 3 (JM-532)
duty. Although failure to ,meet this statutory duty is therefore an element of an offense under section 6.01(c) of the Penal Code, it IS not conclusive. All othe!, elements of a criminal offense must be present.
SUMMARY An instituticm licensed under article 4442~. V.T.C.S., has a iuty imposed by the statute and rules properly pxeaulgated under the statute for minimum diet standards for its residents which satisfies the statutory duty requirements of section 6.01(c) OE the Penal Code.
JIM MATTOX Attorney General of Texas JACK HIGHTOWER
First Assistant Attorney Gexeral
MARY KELLER
Executive Assistant Attorne:r General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Nancy Sutton
Assistant Attorney General