(a) A person commits an offense when he intentionally, knowingly, recklessly or with gross negligence by act or intentionally, knowingly or recklessly by omission causes a child, elderly person or disabled person to:
(1) serious bodily injury;
(2) severe intellectual disability, impairment or injury; or
(3) Bodily Injury.
(a-1) A person commits an offense if he or she owns, operates, or employs a nursing home, nursing home, nursing home, nursing home, intermediate care home for persons with an intellectual or developmental disability, or other facility of institutional reception and the person who intentionally, consciously, recklessly or with criminal guilt by omission causes a child, elderly or disabled person residing in that community or establishment:
(1) serious bodily injury;
(2) severe intellectual disability, impairment or injury; or
(3) Bodily Injury.
(b) An omission that causes a condition described in subsection (a)(1), (2) or (3) or (a-1)(1), (2) or (3) is conduct that constitutes an offense criminal in this section if:
(1) the actor has a legal or statutory duty to act; or
(2) the actor looked after, cared for or controlled a child, elderly person or person with a disability.
(c) In this section:
(1) “Child” means a person 14 years of age or younger.
(2) “Elderly Person” means a person 65 years of age or older.
(3) “Disabled Person” means a person:
(A) with one or more of the following:
(i) Autism Spectrum Disorder as defined in Section 1355.001, Insurance Code;
(ii) developmental disabilities, as defined in Section 112.042 of the Human Resources Code;
(iii) intellectual disability as defined in Section 591.003, Health and Safety Code;
(iv) serious emotional disturbances as defined in Section 261.001 of the Family Code;
(v) traumatic brain injury as defined in Section 92.001, Health and Safety Code; or
(vi) mental illness as defined in Section 571.003, Health and Safety Code; or
(B) who are otherwise substantially unable to protect the person from harm or to provide food, shelter or medical care to the person due to old age or physical or mental illness, defect or injury.
(4) Repealed by Acts 2011, 82nd Leg., R.S., Ch. 620, sec. 11, eff. September 1, 2011.
(d) For purposes of an omission causing a condition described in subsection (a)(1), (2) or (3), the actor assumed care, custody or control when acting, drafting or acting or conduct that acted in a manner that causes a reasonable person to conclude that he or she has assumed responsibility for the protection, food, shelter and medical care of a child, elderly or disabled person. For purposes of an omission that causes a condition described in subsection (a-1)(1), (2) or (3), the actor must act in the capacity of owner, operator or employee of a collective residence or facility as described in subsection (a-1), he is deemed to have assumed responsibility for the protection, food, shelter and medical care of the child, elderly or disabled person residing in the community or facility.
(e) An offense under subsection (a)(1) or (2) or (a-1)(1) or (2) is a felony of the first degree if the conduct is committed intentionally or knowingly. If the conduct is committed recklessly, the offense is a second-degree felony.
(f) An offense under subsection (a)(3) or (a-1)(3) is a third degree offense if the conduct was committed intentionally or knowingly, except that an offense under subsection (a)(3) ) is a second-degree felony if the conduct was committed intentionally or knowingly and the victim is a person with a disability residing in a facility established under Section 555.001, Health and Safety Code, or in a facility licensed under Chapter 252, Code health and safety, and the actor is an employee of the center or facility whose job involved caring directly for the victim. If the conduct is committed recklessly, the offense is a state prison felony.
(g) An offense under subsection (a) is a state prison felony when the person is criminally negligent. An offense under subsection (a-1) is a state prison felony when the person, by criminal negligence and omission, causes any condition described in subsection (a-1)(1), (2) or (3).
(h) A person prosecuted under this section and any other section of this Code may be prosecuted under either or both sections. Section 3.04 does not apply to crimes prosecuted under this section and any other section of this Code. If a criminal episode is prosecuted under this section and any other section of this Code, and penalties for convictions are imposed under both sections, the penalties will expire concurrently.
(i) It is a positive defense against the charge under subsection (b)(2) that the actor, prior to the crime:
(1) personally notify the child, elderly, or disabled person that the actor will no longer provide the care described in subsection (d) and notify in writing the parents or any person other than the actor acting loco parentis for the child, elderly person or disabled person that the actor would no longer provide the care described in subsection (d); or
(2) has notified the Department of Family and Protective Services in writing that the actor is no longer providing the care services described in subsection (d).
(j) Written notice under subsection (i)(2) or (i)(3) is effective only if it includes the name and address of the actor, the name and address of the child, elderly person or person with a disability contains type by the actor and end date of the maintenance.
(k) It is a defense against the charge under this section that the act or omission consisted of:
(1) appropriate medical care under the direction of or by a licensed physician; or
(2) emergency medical care provided in good faith and with reasonable care by a person not licensed in the healing arts.
(l) It is a positive defense against the charge under this section:
(1) that the act or omission resulted from treatment in accordance with the principles and practices of an accepted religious method of healing of generally recognized efficacy;
(2) to a person accused of an act of omission that caused a child, elderly or disabled person to have a condition described in subsection (a)(1), (2) or (3) that:
(A) there is no evidence that the accused was aware of an incident in which the child, elderly or disabled person was injured the day before the charged crime and failed to report the incident; AND
(B) the Person:
(i) was a victim of domestic violence, as that term is defined in Section 71.004 of the Family Act, committed by a person who is also charged with a crime against the child, elderly person or person with a disability under that section or any other section of this title;
(ii) did not cause any of the conditions described in subsection (a)(1), (2) or (3); AND
(iii) did not reasonably believe at the time of the omission that an attempt to prevent the person who is also accused of a crime against the child, elderly or disabled person from committing the crime would have any effect; or
(3) that:
(A) the actor was not more than three years older than the victim at the time of the crime; AND
(B) the victim was a healthy or disabled child at the time of the crime.
(m) Is a positive defense against the charge under subsections (a)(1), (2) and (3) for injuring a person with a disability that the person did not and could not reasonably have known that the person with a disability was a person as defined in subsection (c) at the time of the offence.
Acts of 1973, 63rd Leg., p. 883, chap. 399, sec. 1, eph. January 1, 1974. Amended by Acts 1977, 65th Leg., p. 2067, chap. 819, sec.1, ef. August 29, 1977; Acts of 1979, Leg. 66, p. 365, chap. 162, paragraph 1, eff. August 27, 1979; Acts of 1981, Leg. 67, p. 472, chap. 202, paragraph 4, eff. September 1, 1981; Acts of 1981, Leg. 67, p. 2397, chap. 604, sec.1, eph. September 1, 1981; Acts of 1989, Leg. 71, chap. 357, sec.1, ef. September 1, 1989; Acts of 1991, Leg. 72, chap. 497, paragraph 1, eff. September 1, 1991; Acts of 1993, Leg. 73, chap. 900, sec 1.01, rms September 1, 1994; Acts of 1995, Leg. 74, chap. 76, Section 8.139, eff. September 1, 1995; Acts of 1999, Leg. 76, chap. 62, Section 15.02(b), eff. September 1, 1999.
Changed by:
Acts 2005, 79. Leg., Kap. 268 (SB 6), Sec. 1.125(a), ef. September 1, 2005.
Acts 2005, 79. Leg., Kap. 949 (H.B. 1575), Sek. 46, eph. September 1, 2005.
Acts 2009, 81. Leg., R.S., Kap. 284 (SB 643), Sec. 38, eph. June 11, 2009.
Acts 2011, 82nd Leg., R.S., Ch. 620 (SB 688), Sec. 5, eph. September 1,
Acts 2011, 82nd Leg., R.S., Ch. 620 (SB 688), Sec. 11, eph. September 1,
Acts 2015, 84. Leg., R.S., Ch. 719 (H.B. 1286), Sec. 1, eph. September 1,
Acts 2015, 84. Leg., R.S., Ch. 719 (H.B. 1286), Sec. 2, eph. September 1,
Acts 2017, 85. Leg., R.S., Kap. 361 (H.B. 3019), Sec. 1, eph. September 1, 2017.
Acts 2017, 85. Leg., R.S., Kap. 361 (H.B. 3019), Sec. 2, eph. September 1, 2017.
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