JIM MAlTOX 

Attorney General 

Supreme Court Building 

P. 0. BOX 12548 

Austin. TX. 79711.2549 

51214752501 

Telex 910/874-1367 

Telecopier 5121475~266 

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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 recklessly 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 Legisiature, 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