What is Injury to an Elderly in Texas?
Under Texas Penal Code Section 22.04, the offense of Injury to an Elderly occurs when a person causes injury to person who is 65 years of age or older. The injury can be deliberate or it can be caused by inaction – in other words, causing injury or harm by failing to do something. There are also special provisions that apply to professional caregivers, as well. Notably, the offense does not distinguish based on the age of the accused. For example, if two people get into a fight in a retirement center, one could get charged with injury to an elderly.
What Constitutes Injury to an Elderly?
A person can commit injury to the elderly if he or she intentionally, knowingly, recklessly, or with criminal negligence by act;
intentionally, knowingly, recklessly by omission cause:
- Seriously bodily injury,
- Serious mental deficiency, impairment, or injury, or
- bodily injury.
What is Injury to Elderly by Caregiver?
An owner, operator, or employee of a group home, nursing facility, assisted living facility, intermediate-care facility can be charged with injury to an elderly when he or she:
- Intentionally, knowingly, recklessly, or with criminal negligence by omission causes an elderly person:
- Serious bodily injury; or
- Serious mental deficiency, impairment, or injury; or
- Bodily injury.
How is an “Elderly” Person Defined in Texas?
Texas defines an “elderly individual” as a person 65 years or older. This includes a person who is 65 years old. Also, the person charged does not need to know at the time the person is 65 to be charged with injury to the elderly.
What is Bodily Injury?
In Texas, bodily injury is a physical pain, illness, or any impairment of physical condition. In other words, if the victim says “it hurts,’ that is evidence of bodily injury. There is no requirement for bruising or other visible injuries.
What is Serious Bodily Injury?
A serious bodily injury is a bodily injury that creates a substantial risk of death, or something that causes death, a serious permanent disfigurement, or protracted loss or impairment of the function on any bodily member or organ.
What is an Omission for Purposes of Injury to an Elderly?
An omission is when a person who has assumed care of an elderly person fails to do something, resulting in injury or harm. For example, failing to provide food or medicine could constitute injury to the elderly. Under the law, a person assumes care, custody, or control if by some act, words, or course of conduct causes a reasonable person to conclude that the person has accepted responsibility for protection, food, shelter, and medical care for the elderly person.
What Offense Level is Injury to an Elderly in Texas?
|Level of Injury||Mental State||Level of Offense|
|Bodily Injury||Negligently||State Jail Felony|
|Bodily Injury||Recklessly||State Jail Felony|
|Bodily Injury||Intentionally or knowingly||3rd Degree|
|Serious Bodily Injury||Negligently||State Jail Felony|
|Serious Bodily Injury||Recklessly||2nd Degree|
|Serious Bodily Injury||Intentionally or knowingly||1st Degree|
Injury to the elderly can range from a state jail felony to a first-degree felony. The level of offense depends on the alleged mental state, alleged injury, and in certain circumstances, whether the accused was a professional caregiver or not.
First Degree Felony
- Intentionally or knowingly causes serious bodily injury.
- Intentionally or knowingly causes serious mental injury.
Second Degree Felony
- Recklessly causes serious bodily injury.
- Recklessly causes serious mental injury.
- Intentionally or knowingly causing bodily injury if the victim is disabled and residing in a care center and the accused is employed as a caregiver.
Third Degree Felony
- Intentionally or knowingly causing bodily injury.
State Jail Felony
- Recklessly causing bodily injury.
- Negligently causing serious bodily injury.
- Negligently causing serious mental impairment.
- Negligently causing bodily injury.
- A caregiver negligently omitting causing serious bodily injury, serious mental impairment, or bodily injury.
What Are the Potential Punishment Ranges?
- A first-degree felony in Texas in punishable by 5 to 99 years in prison, as well as a fine up to $10,000.
- A second-degree felony is punishable by 2 to 20 years in prison with up to a $10,000 fine.
- A third-degree felony is punishable by 2 to 10 years with up to a $10,000 fine.
- A state-jail felony is punishable by 180 days to 2 years in state jail and up to a $10,000 fine.
Is Injury to the Elderly a Result-Oriented Crime of Circumstance-Oriented Crime?
Injury to an elderly person is a result-oriented crime. See Haggins v. State, 785 S.W.2d 827, 828 (Tex.Crim.App.1990)
What Are the Potential Defenses?
There are a number of defenses to injury to an elderly in Texas. Some of them are codified. To learn more about statutory affirmative defenses that apply to injury to an elderly or other defenses that may apply, consult with an experienced criminal defense attorney at our firm. For a free consultation, call us at (817) 203-2220 or contact us online.