Attorney General Opinion JM-0532

JIM MAlTOX Attorney General Supreme Court Building P. 0. BOX 12548 Austin. TX. 79711.2549 51214752501 Telex 910/874-1367 Telecopier 5121475~266 714 Jackson, Suite 700 Dallas, TX. 75202.4505 2141742.9944 4824 Alberta Ave., Suite 160 El Paso, TX. 799052793 91515353464 r Texas. Suit8 700 huuston, TX. 77002~3111 71312255886 606 Broadway, Suite 312 Lubbock, TX. 79401-3479 9LW747.5238 4309 N. Tenth. Suite S McAllen, TX. 75501-1685 5121662.4547 200 Main Plaza, Suite 4W San Antonio, TX. 792052797 5121225.4191 An Equal OpportunityI Affirmative Action Employer The Attorney General of Texas August 15, 1986 Honorable Sam D. Millsap, Jr. Criminal District Attorney Bexar County Courthcuse San Antonio, Texas 78205 Opinion No. JM-532 RS: Duty of institutions licensed under article 4442c, V.T.C.S., to provide a minimum diet to residents Dear Mr. Millsap: You inquire wh@!t:her an institution licensed under article 4442~. 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 under section 22.01(b) of the Penal Code. Article 22.01 cf the Penal Code provides, in part, that (a) A person commits an offense if the person: (1) intentionally, knowingly, or reck- lessly causes bodily injury to another, including the person's spouse; or (2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse; or (3) intentionally or knowingly causes physical contact with another when the person knows ,317 should reasonably believe that the other 1rj.11 regard the contact as offensive or provocative. (b) An offense under Subsection (a)(l) of this 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 p. 2452 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 p. 2453 Honorable Sam D. Millsap, Jr. 2 Page 3 (JM-532) duty. Although failure to ,meet this statutory duty is therefore element of an offense under section 6.01(c) of the Penal Code, it not conclusive. All othe!, elements of a criminal offense must present. an IS be 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 p. 2454