Does a licensed Texas care institution have a legal duty to feed its residents a minimum diet?

Texas AG Opinion JM-532: Care Facility Diet Duty

Plain-English summary

The Bexar County criminal district attorney asked the Attorney General a narrow but consequential question: does an institution licensed under article 4442c of the civil statutes have a legal duty to provide its residents a minimum diet? The reason it mattered was criminal. Under Penal Code section 22.01(b), assault can be a felony when committed by the owner or an employee of such an institution against a patient or resident, and one way to commit that assault is by omission, by failing to do something. But Texas criminal law lets you be punished for an omission only when the law imposes a duty to act. So the prosecutor needed to know whether the licensing statute created a duty to feed residents. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0532.pdf

The AG concluded that the duty exists. The Penal Code says conduct includes an omission, that a person commits an offense only if he voluntarily engages in conduct, and that an omission is an offense only if a statute makes it one or otherwise imposes a duty to act (sections 1.07, 6.01). Article 4442c supplies that duty. Section 1 declares the act's purpose is to promote public health, safety, and welfare by setting and enforcing standards for the treatment of people in covered institutions, and section 7(d) authorizes the licensing agency to adopt minimum standards for each resident's diet, based on good nutritional practice or the attending physician's recommendations. The licensing agency, the Texas Department of Health, in fact adopted rules requiring a food service that provides wholesome and satisfying meals meeting residents' nutritional needs (25 Texas Administrative Code sections 145.181 through 145.183). Even though the statute does not itself list detailed diet standards, it impliedly requires the agency to adopt them, so a licensed institution has a statutory duty to maintain a minimum diet. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0532.pdf

The AG added an important qualifier for anyone thinking about a prosecution. Meeting the statutory duty requirement is necessary but not sufficient. Failure to provide the minimum diet is only one element of an assault-by-omission offense; every other element of the crime, including the required culpable mental state and the resulting bodily injury, must still be established. The duty answers the "was there something the person was legally required to do" question, not the whole case. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0532.pdf

Currency note

This opinion was issued in 1986. Article 4442c has since been recodified (the licensing of these institutions now lives in the Health and Safety Code), the Texas Administrative Code diet rules have been renumbered and revised, and Penal Code section 22.01 has been amended several times. Treat this page as historical context, not current legal advice. Verify the current statutes and rules before relying on any specific section number mentioned here.

Common questions

Does a licensed care facility have to feed its residents a minimum diet?

Yes. The AG concluded that an institution licensed under article 4442c has a statutory duty, imposed by the statute and the rules properly adopted under it, to meet minimum diet standards for its residents. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0532.pdf

Why did a prosecutor care whether the diet duty existed?

Because of how criminal liability for inaction works. The AG explained that a person commits an offense by omission only if a statute makes the omission an offense or otherwise imposes a duty to act (Penal Code section 6.01(c)). To prosecute an assault committed by failing to feed a resident, the state first needed a legal duty to feed, which article 4442c supplies. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0532.pdf

Where do the actual diet standards come from if the statute doesn't spell them out?

From the licensing agency's rules. The AG noted that article 4442c authorizes the Texas Department of Health to adopt minimum standards for each resident's diet, and that the department promulgated rules requiring wholesome and satisfying meals meeting residents' nutritional needs (25 Texas Administrative Code sections 145.181 through 145.183). The statute impliedly requires the agency to adopt those standards. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0532.pdf

Does proving a missed meal automatically prove a crime?

No. The AG cautioned that failure to meet the statutory diet duty is only one element of an assault-by-omission offense, and that all the other elements of the crime must still be present. The duty is a necessary building block, not the whole offense. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0532.pdf

Background and statutory framework

The analysis sits at the intersection of the Penal Code and a licensing statute. Penal Code section 22.01 defines assault, and subsection (b) elevates the offense when it is committed by the owner or an employee of an institution described in the statute (identified by reference to article 4442c) by causing bodily injury to a patient or resident. Because the prosecutor's theory was assault by omission, the controlling Penal Code rule was section 6.01(c): a person who fails to act does not commit an offense unless a statute makes the omission an offense or imposes a duty to perform the act (see also the definitions in section 1.07 and Ronk v. State). Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0532.pdf

Article 4442c furnished the duty. Section 1 frames the act's purpose as protecting public health, safety, and welfare through standards for treating individuals in covered institutions, and section 7 authorizes the licensing agency to adopt and enforce minimum standards, including for each resident's diet based on good nutritional practice or the attending physician's recommendations. The Texas Department of Health carried that out through minimum licensing standards in the Texas Administrative Code (sections 145.181 through 145.183), including a requirement that residents receive wholesome and satisfying meals meeting general nutritional needs. The AG treated the statute as impliedly requiring the agency to set diet standards, so the licensed institution's duty was both statutory and regulatory, satisfying section 6.01(c) while leaving the rest of the assault elements to be proved in any particular case. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0532.pdf

Citations and references

The opinion cited the following authorities. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0532.pdf

Statutory and regulatory provisions:

• V.T.C.S. art. 4442c, §§ 1, 7 (licensing of institutions; minimum standards, including diet under § 7(d))
• Tex. Penal Code § 22.01 (assault), including subsection (b)
• Tex. Penal Code § 1.07(a)(8), (23) (definitions of conduct and omission)
• Tex. Penal Code § 6.01(a), (c) (voluntary conduct; offense by omission)
• 25 Tex. Admin. Code §§ 145.181, 145.182, 145.183 (minimum dietary standards)

Cases:

• Ronk v. State, 544 S.W.2d 123 (Tex. Crim. App. 1976)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0532
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0532.pdf

Original opinion text

Best-effort transcription from a scanned PDF text layer. Minor OCR errors may remain; the linked PDF is authoritative.

The Attorney General of Texas

August 15, 1986

JIM MATTOX
Attorney General

Honorable Sam D. Millsap, Jr.
Criminal District Attorney
Bexar County Courthouse
San Antonio, Texas 78205

Opinion No. JM-532

Re: Duty of institutions licensed under article 4442c, V.T.C.S., to provide a minimum diet to residents

Dear Mr. Millsap:

You inquire whether an institution licensed under article 4442c, V.T.C.S., has a duty imposed by statute to provide a minimum diet to its residents. Your question is raised by the fact that the existence of such a duty is relevant to a prosecution of assault by omission under section 22.01(b) of the Penal Code.

Article 22.01 of the Penal Code provides, in part, that

(a) A person commits an offense if the person:

(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse; or

(2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse; or

(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.

(b) An offense under Subsection (a)(1) of this section is a Class A misdemeanor unless the offense is committed by the owner or an employee of an institution described in Subsection (a), Section 2, Chapter 413, Acts of the 53rd Legislature, Regular 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 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 §1.07(a)(8), (23). A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession. Penal Code §6.01(a). A person who omits to perform an act does not commit an offense unless a statute provides that the omission is an offense or otherwise provides that he has a duty to perform the act. Penal Code §6.01(c). See Ronk v. State, 544 S.W.2d 123, 125 (Tex. Crim. App. 1976). Hence, you inquire if article 4442c, V.T.C.S., places a duty on an institution licensed under article 4442c to maintain a minimum diet for its residents. We conclude that it does.

Section 1 of article 4442c 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 enforcement of standards for the treatment of individuals in institutions covered by the act. Section 7 of article 4442c provides, in part, that

[t]he Licensing Agency is authorized to adopt, amend, promulgate, 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 4442c, the licensing agency, which is the Texas Department of Health, has promulgated minimum licensing standards which provide that 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. §145.181(c)(3)(A) (1985). Section 145.182(e)(8) provides in more specificity minimum standards for dietary service. See also §145.183(e).

Article 4442c does not itself specify in detail minimum standards for the diet of the residents of the institutions, but article 4442c impliedly requires the licensing agency to adopt standards for diets which will supply the nutritional needs of the residents. As indicated, a person does not commit a criminal offense of omission unless the law creates a duty to act. Article 4442c creates such a 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 other elements of a criminal offense must be present.

SUMMARY

An institution licensed under article 4442c, V.T.C.S., has a duty imposed by the statute and rules properly promulgated under the statute for minimum diet standards for its residents which satisfies the statutory duty requirements of section 6.01(c) of the Penal Code.

Very truly yours,

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Nancy Sutton
Assistant Attorney General