Injury to an Elderly Individual is grouped together in Texas Penal Code Chapter 22 with the other Assault crimes. However, Injury to an Elderly Person outlined in Texas Penal Code 22.04 is more complicated than the ordinary Assault crime. It is more complicated, more expansive, and penalizes a broader set of not only actions but inactions as well. It also carries harsher penalties. Like ordinary Assault, it is a crime for a person to take a deliberate action that causes an injury to someone else. In addition, an Injury to an Elderly offense penalizes a person for doing nothing, if that act of doing nothing resulted in an injury or illness to an elderly individual. When a person does nothing and an injury results, this is called an omission. For an omission to be a crime, the person who made the omission must have either been legally obligated to provide care, shelter, food, or medical care, or otherwise assumed the role of caretake.
Injury to an Elderly Person Texas Penal Code Section 22.04
The reason for the wide-ranging nature of this statute is because elderly people, like children and disabled persons, are vulnerable members of society and need protection. An elderly person means any person who is over the age of 65 at the time of the offense. There are differing degrees of criminal penalties for an Injury to an Elderly Person. All penalties for Injury to an Elderly person are felonies. These penalties range from state-jail felony (the lowest level of felony) all the way up to a first-degree felony. These penalties are determined by both the degree of injury and the kind of conduct that the charged person engaged in. Was the injury minor or serious? Did someone intentionally cause the injury, or intentionally withhold care? Or was the injury the result of some kind of mistake or oversight? All of these questions are very important. There are several defenses that are available for this crime as well. This page discusses these and other aspects of this criminal charge.
How Is Injury to an Elderly Person Different from Assault?
An Assault is different from an Injury to an Elderly Person is two essential ways. One, Injury to an Elderly Person has harsher punishments. Assaults in Texas that are not Aggravated Assaults are Class A misdemeanors, while Injury to an Elderly person is at least a state jail felony and could be as high as a first-degree felony. Two, it encompasses not only an act that causes an injury, but also a person’s failure to take an action if the person has a duty to provide care. Omissions are discussed in the section below. The Assault statute, in Texas Penal Code Section 22.01, mandates that a person has committed a crime if they either intentionally or recklessly cause someone to have bodily injury, to feel pain. Injury to an Elderly also requires bodily injury, this a key difference is the injury can be caused by either an act or a refusal to act.
What is An Omission?
An omission is the failure to do something that causes injury or harm to an elderly person. For the omission to be criminal, the person making the omission must have either a legal duty to care for the person who got injured or have assumed care for that person. Elderly people are often vulnerable or infirm. Some are very vulnerable or incapacitated and require daily caretaking. Many live full-time in assisted living facilities or nursing homes. Still others have someone living with them or visiting them at their home daily to look after them. The decisions that caretakers make are very important to health and safety. Elderly people often rely on one or several people to provide food, shelter, and medical care to survive. An omission can occur when someone who has assumed care for an elderly individual fails to provide either food or medicine and this causes harm.
What are the Duties for Employees of Nursing Home and Assisted Care Facilities?
Owners or employees or operators of nursing home facilities or assisted living facilities have special legal duties to maintain the health and safety of elderly individuals living under their care. Texas Penal Code Section 22.04(a-1) outlines the special duties and responsibilities of caretakers. For caretakers, omissions are criminalized. When an employee or an owner or an operator of such a business neglects to provide care or withholds care and this results in bodily injury or serious bodily injury, this can be deemed an omission leading to a criminal charge. Law enforcement investigating an allegation of Injury to an Elderly person will look to the circumstances to try and figure out what exactly happened. Police and prosecutors make a concerted effort to protect them. And rightly so. We all should look out for others, especially those who need special care, children, elderly, and disabled persons. However, sometimes a person is charged with a crime that was not their fault. Everyone deserves the opportunity to develop a defense. If a person is facing this charge, the first step they should take is contacting and retaining a skilled criminal defense attorney.
What Does Bodily Injury Mean?
Someone suffering bodily injury is often at the core of any assault case. This includes an Injury to an Elderly Individual. The Texas Penal Code defines bodily injury to mean pain that causes either pain or illness. Bodily injury is a less significant injury than serious bodily injury, discussed below. Bodily injury can be a bruise, a cut, a scrape, a burn, a sprained ankle or other joint, or any other injury. In the context of Injury to an Elderly, bodily injury might also mean an omission that causes bed sores. It could also mean that the person gets sick because medicine was not provided.
What Does Serious Bodily Injury Mean?
The Texas Penal Code defines serious bodily injury as an injury that creates a considerable risk of death or that causes either permanent deformity or the sustained loss of any bodily function. The difference between serious bodily injury and bodily injury can be very clear with little debate, or it can be subtle and subject to disagreement between lawyers. In these circumstances, the consequences are profound. An indictment that alleges serious bodily injury carries significantly more serious penalties than one that alleges bodily injury. Anyone facing an allegation of serious bodily injury needs to consult with an experienced criminal defense lawyer.
What Are Punishments?
The possible punishments vary in severity. However, any allegation of an Injury to an Elderly Person will be a felony charge. Felonies in Texas mean that the charge carries the possibility of at least a year of incarceration at a minimum. Higher levels of felonies carry the possibility of many years of incarceration. The penalty level depends on two things, the degree of the injury and the degree of culpability. Did the injury put someone in jeopardy of losing their life or did it cause serious disfigurement or the loss of an essential bodily function? Or did the injury fall short of this but still result in pain?
Penalties Depend on Context
Culpability means a person’s mindset. Rarely does a person claim “I am acting intentionally!” before committing an act that leads to a crime. Law enforcement and prosecutors will look at the context and the circumstances to determine what a person’s mindset was when an injury occurred. Defense attorneys should also examine the facts and circumstances of the case to challenge the prosecutor’s theory of the case. There are four mental states in the Texas Penal Code: intentional, knowing, reckless, and negligence. Each carries its specific penalties. Did someone intend to cause an injury by doing something, or by refusing to do something, or did they act recklessly or maybe the injury was just an oversight? Whether something happened that caused a crime was purposeful or merely an accident will be a huge battle between prosecutors and defense attorneys. Challenging a mental state is at the core of defending a criminal case. Litigating and challenging a mental state, especially an allegation of intentionality, requires skilled criminal defense, detailed investigation, and thorough preparation.
What is a Grand Jury?
All Texas felony cases go through the indictment process and the grand jury. Like a jury, the grand jury is composed of residents from the Texas County that the allegation took place. Also like a jury, the grand jurors make decisions about cases. Grand jurors decide whether felonies go forward after an arrest. Unlike a jury, this is a completely closed door proceeding, unopen to the defense attorney. There are not the rules of evidence or procedure of trial, and there is no judge in the grand jury room. A prosecutor presents a case to a grand jury and the grand jurors can discuss and ask questions. The only people allowed in the grand jury room are the prosecutor, the grand jurors themselves, and a court reporter. The prosecutors can present witnesses and the defendant can testify, although the defendant cannot be compelled to testify to the grand jury or at any other time, including trial. The decision for a defendant to testify at any point is a decision for the defendant to make with his or her defense attorney. Even though a defense attorney is not allowed in the grand jury room, they can influence a case at this early stage by approaching a prosecutor who has the case and present evidence to them or expose problems with the case. Sometimes this can be very effective, although it depends on the particularities of the case.
What Does Intentional Mean?
Intentional conduct is the highest mental state for criminal offenses. According to 22.04, the most serious penalty for Injury to an Elderly Person is intentionally committing an act of intentionally omitting some care, food, shelter, or medical care that causes serious bodily injury. Intentional acts are laid out in Texas Penal Code 6.03(a). Someone acts intentionally when they act with a deliberate desire to make something happen. If someone takes a baseball bat and steps onto a baseball field, into the batter’s box, with the intent to hit the pitch, swings at the pitch and hits the pitch, this is an intentional act. When a person punches a punching bag, the person has intent to hit the bag. Sometimes it is easy to discern intent, and sometimes it is very difficult. Circumstances are extremely important. Context is important. What did the person say? How did they act? The reconstruction of intent intent can be like the reconstruction of a puzzle. Intentional acts or omissions that cause serious bodily injury is a first-degree felony, and intentional acts or omissions that cause bodily injury is a third-degree felony.
What Does Knowing Mean?
After intentional conduct, the second highest mental state is knowing. What is knowing? It is not as clear and straightforward as intentionality. Knowing means that a person does something or fails to do something with knowledge. To act with a knowing mental state, someone needs to be pretty certain that their actions or their failure to act will have a particular result. What are some examples of this? Imagine if I start cooking dinner on the stove in my house and accidentally start a fire that begins to spread a little. At this point the fire burns softly and I could extinguish it if I wanted to. There is a fire extinguisher nearby but I do not grab it. Instead I step back and observe the fire slowly grow stronger. I see it starts to catch the walls and then I see it spread to the wood panels of the floor and continue to grow. I continue to watch the fire, doing nothing, and then instead of trying to put it out I just leave the house and I make no effort to. I don’t call the fire department. I come back hours later and see that my house engulfed in flames, my action of leaving was knowing conduct. Starting the fire was not my fault, but I could have put it out. Perhaps the start of the fire was negligent, depending on how I was cooking. However, when I leave my house burning, I am reasonably certain that it will grow and spread. I act with knowledge that my house will burn. This is an example of knowing conduct. Acts or omissions committed knowingly causing serious bodily injury are first degree felonies, and those causing bodily injury are third degree felonies.
What Does Reckless Mean?
Different from intentional or knowing, recklessness is about careless risk taking. Everyone is familiar with the term recklessness. We use this word and know what it means. Acting reckless is to know about a risk but to ignore that risk and proceed anyway. Imagine that it is a beautiful and sunny day. I am packing for a week-long trip and getting ready to leave. I decide unwisely to leave my windows open. When I return from my trip, I find out that it has rained. My floors and some of my furniture is soaked wet and damaged. I am aware that it rains in Texas and that the weather changes unpredictably. I acted recklessly to whether the inside of my house and my furniture would get wet. I also acted recklessly to whether bugs would get into the house, or even if someone might break in when I was away. Reckless Injury to an Elderly resulting in bodily injury is a state-jail felony. Reckless Injury to an Elderly causing resulting in serious bodily injury is a second-degree felony.
What Does Negligence Mean?
The lowest level of culpability for an Injury to an Elderly charge is criminal negligence. Negligence is generally something that gets litigated in civil law, when someone files a lawsuit against a person or a business. Criminal negligence is not a culpable mental state for Assault or Aggravated Assault, but for an Injury to an Elderly Person it is. Criminal negligence is similar to recklessness because it involves ignoring a risk of greater or lesser size. Negligence in the context of an Injury to an Elderly could involve something like a caretaker withholding medicine from someone because of forgetfulness or because of an oversight. This is an example of someone having a duty to provide care, omitting to provide care, and neglecting to do so. An Injury to an Elderly Person with an allegation of criminal negligence is a state jail felony.
What are Defenses to Injury to an Elderly Person?
There are different defenses to a charge of Injury to an Elderly Individual. There are defenses and there are affirmative defenses, which are described below. Although theses defenses listed below may not fit each case, each case has a defense. There are several defenses outlined in the statute, Texas Penal Code 22.04. These are specific defenses or affirmative defenses and they will not fit every single case.
Reasonable Medical Care
There are two defenses regarding medical care. The first regards medical care under the direction of a physician. The second deals with emergency medical care. It is a defense to Injury to an Elderly Person if the injuries were because of reasonable medical care. The medical care must be at the direction of a physician. And the medical care must be reasonable. If there is an emergency requiring emergency medical care, then a physican’s direction is not required. Emergency medical care only requires a good faith effort to heal the individual. Good faith means that the only motivation be a sincere effort to care for the person and nothing else.
What is An Affirmative Defense?
An affirmative defense does not deny that the criminal allegation takes place. An affirmative defense is not an “I didn’t do it” defense. Rather, an affirmative defense admits it but offers a defense to explain or justify it. Self-defense is an affirmative defense to both murder and assault. A claim of self-defense does not deny that the murder of assault took place, but justifies it by explaining that the person had no choice but to commit the act because they were in serious and imminent danger. For an Injury to an Elderly charge, self-defense is not a defense, but there are other affirmative defenses.
No Longer Caring for an Elderly Individual
If a caregiver is no longer providing care when the injury occurs, that is an affirmative defense, but there are certain requirements that must be met according to Texas Penal Code Section 22.04(j). The person claiming this defense must have informed the injured party in person that they will no longer be giving care, food, medical care, or protection. Also, they must have notified the elderly individual in writing that care would no longer be provided.
Omission Was Based on Recognized Method of Religious Healing
There is an affirmative defense that permits medical treatment that accords with the practices of an accepted healing method of a recognized religious practice. Furthermore, the method of healing must have a recognized degree of effectiveness. People have a fundamental right to practice their religion in the United States, and there is an affirmative defense that recognizes this right. This is outlined in Texas Penal Code Section 22.04(l)(1). The constitutional right for a person to openly practice the religion of his or her choice is a powerful right. The United States Constitution is the highest law there is, above both federal law and Texas law. However, this medical-care-based-on-religion defense does not allow someone to claim this defense frivolously. The healing method, the religion, and the heling effectiveness all must be generally acknowledged.
Victims of Family Violence
There is also a defense for a person charged with Injury to an Elderly Person for people that are themselves the victims of family violence caused by the same person who is also charged causing an injury to an elderly person. Family violence is an assault causing committed against a family member. Family member is defined by the Texas Family Code Section 71.0021(b). This defense requires that the person must not have been aware of any injury to an elderly individual on any prior occasion and did not fail to report it. This defense also requires that the person must have a reasonable belief that any effort to stop or prevent the abuse would have not had any impact.