JIM MAlTOX Attorney General

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# The Attorney General of Texas

August 15, 1986

Honorable Sam D. Millsap, Jr. CriminalDistrictAttorney Bexar County Courthcuse SanAntonio,Texas 78205 OpinionNo. JM-532 RS: Duty of institutionslicensed under article 4442c, V.T.C.S., to providea minimum diet to residents
DearMr. Millsap:
You inquirewh@!t:her an institution licensed under article 4442~. V.T.C.S., has a dut:rimposed by statute to provide a minimum diet to its residents. Your question is raisedby the fact that the existence of such a duty is mlevant to a prosecutioriof assault by omission under section 22.01(b)of thePenal Code. Article 22.01 cf the Penal Codeprovides, in part, that

(a)A person commitsan offense if theperson: (1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse;or (2) intentionally or knowingly threatens another with imminentbodily 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.arSession, 1953, as amended (Article 4442c,Vernon's Texas Civil Statutes),or a person providing medical or psychiatric treatment at an institutiondescribed in that subsection.and the

p. 2452Honorable Sam D. Millsap, Jr. - Page 2 (JM-532)

offense is committedby causingbodily injury to a patient or resident of an institutiondescribed 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.lyif he voluntarily engages in conduct, includingan act, an omissi~~n, or possession. Penal Code 56.01(a). A personwho omits to perform an act does not commit an offense unless a statuteprovides that the omrission is an offense or otherwiseprovides thathe 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 institutionscoveredby the act. Section 7 of article 4442~provides, in part, that

[tlheLicensing 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 recommendationswhichmay be made by thephysician 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 satisfyingmeals 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 detailminimum 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.utritionalneeds of the residents. As indicated, a person does nlotcommit a criminal offense of omission unless the law creates a duty to act. Article 4442~ creates such a

p. 2453Honorable SamD. Millsap, Jr. 2 Page 3 (JM-532)

duty. Although failure to ,meetthis 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 thePenal Code.

JIM MATTOX Attorney General of Texas JACKHIGHTOWER FirstAssistantAttorneyGexeral
MARY KELLER ExecutiveAssistantAttorne:r General RICK GILPIN Chairman,Opinion Committee Preparedby Nancy Sutton AssistantAttorney General

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