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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.
A person can commit injury to the elderly if he or she intentionally, knowingly, recklessly, or with criminal negligence by act;
or
intentionally, knowingly, recklessly by omission cause:
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:
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.
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 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.
| 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.
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 at our firm. For a free consultation, call us at (817) 203-2220 or contact us online.
