                                      The Attorney         General of Texas

JIM MAlTOX                                               August 15, 1986
Attorney General


Supreme Court Building               Honorable Sam D. Millsap, Jr.         Opinion No.   JM-532
P. 0. BOX 12548                      Criminal District Attorney
Austin. TX. 79711.2549               Bexar County Courthcuse               RS:   Duty of institutions licensed
51214752501
                                     San Antonio, Texas   78205            under article 4442c, V.T.C.S., to
Telex 910/874-1367
Telecopier  5121475~266
                                                                           provide a minimum diet to residents

                                     Dear Mr. Millsap:
714 Jackson, Suite 700
Dallas, TX. 75202.4505
                                          You inquire wh@!t:heran institution licensed under article 4442~.
2141742.9944
                                     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
4824 Alberta       Ave., Suite 160   of such a duty is mlevant to a prosecutioriof assault by omission
El Paso, TX. 799052793               under section 22.01(b) of the Penal Code.
91515353464

                                         Article 22.01 cf the Penal Code provides, in part, that
r
     Texas. Suit8 700
huuston, TX. 77002~3111                           (a) A person commits an offense if the person:
71312255886
                                                       (1) intentionally, knowingly, or reck-
                                                  lessly causes bodily injury to another,
606 Broadway, Suite 312
Lubbock, TX. 79401-3479
                                                  including the person's spouse; or
9LW747.5238
                                                      (2) intentionally or knowingly threatens
                                                 another with imminent bodily injury, including
4309 N. Tenth. Suite S
                                                 the person's spouse; or
McAllen, TX. 75501-1685
5121662.4547
                                                      (3) intentionally or knowingly causes
                                                 physical contact with another when the person
    200 Main Plaza, Suite 4W                     knows ,317should reasonably believe that the
    San Antonio, TX. 792052797
                                                 other 1rj.11regard the contact as offensive or
    5121225.4191
                                                 provocative.

    An Equal OpportunityI                        (b) An offense under Subsection (a)(l) of this
    Affirmative Action Employer               section Is a Class A misdemeanor unless the
                                              offense ir;committed by the owner or an employee
                                              of an inrit.itutiondescribed in Subsection (a),
                                              Section 2, Chapter 413, Acts of the 53rd Legisia-
                                              ture, 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 omrissionis 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,$42cstates 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 an
element of an offense under section 6.01(c) of the Penal Code, it IS
not conclusive. All othe!, elements of a criminal offense must be
present.

                              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:rGeneral

RICK GILPIN
Chairman, Opinion Committee

Prepared by Nancy Sutton
Assistant Attorney General




                                   p. 2454
