According to Texas Penal Code Section 22.04, Injury to an Elderly occurs when a person causes injury to person who is 65 years of age or older. There are special provisions that apply to professional caregivers as well. Notably, the offense does not distinguish based on the age of the accused. In other words, if two people get into a fight in a retirement center, one could get charged with injury to an elderly.
A person can commit by acting:
A person can commit by omission:
The injury caused can be:
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:
Texas defines an “elderly individual” as a person 65 years or older. This includes a person who is 65-years-old. Phillips v. State 753 S.W.2d 813 (Tex. App. Austin 1988, pet. ref’d.). Also, the person charged does not need to know at the time the person is 65-years-old to be charged with injury to the elderly. Fernandez v. State, No. 13-05-208-CR (Tex. Crim. App. May 24, 2006).
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.
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.
An omission under Texas law is when a person has a legal or statutory duty to act – for when the person has assumed care of the elderly person. A person assumes care, custody, or control if by some act, words, or course of conduct that would cause a reasonable person to conclude the person has accepted responsibility for protection, food, shelter, and medical care for the elderly person.
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.
Injury to an elderly person is a result-oriented crime. See Haggins v. State, 785 S.W.2d 827, 828 (Tex.Crim.App.1990)
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.