Injury to a Child, Elderly or Disabled Person: What §22.04 Punishes

These are among the most serious accusations a person can face in Texas, and among the easiest to bring on thin facts. An injury with no witnesses, a medical opinion about how it happened, and a question about who was in the room can be enough to charge. The statute also reaches people who never touched anyone, on the theory that they should have stopped it. Peter M. Barrett has defended violent crime accusations in Dallas County since 1994, across more than 150 jury trials, and the case review is free and confidential. This guide explains what the State has to prove and where the pressure points are.

The three injuries and the four mental states

§22.04(a) covers causing a child, elderly individual or disabled individual any of: serious bodily injury; serious mental deficiency, impairment or injury; or bodily injury. The conduct can be an act done intentionally, knowingly, recklessly or with criminal negligence, or an omission done intentionally, knowingly or recklessly.

There is one step up inside the table. Under §22.04(f), intentionally or knowingly causing bodily injury is a second degree felony rather than a third where the victim is a disabled individual living in a licensed facility or center and the accused is an employee whose job involved providing direct care for that person.

The practical consequence is that the mental state, not the injury, usually decides the sentence. The same broken bone is a first degree felony or a state jail felony depending on what the State can prove about intent. That is the argument worth having.

Who the statute protects, and the ages that surprise people

• Child: 14 years of age or younger. Not 17. An injury to a 15 or 16 year old is prosecuted under the ordinary assault provisions instead, which is a materially different exposure.
• Elderly individual: 65 years of age or older.
• Disabled individual: defined in §22.04(c)(3) by a list of conditions, including autism spectrum disorder, developmental disability, intellectual disability, severe emotional disturbance, traumatic brain injury and mental illness, or anyone who by reason of age or physical or mental disease, defect or injury is substantially unable to protect themselves or to provide their own food, shelter or medical care. That last limb is broad and is frequently the contested one.

The omission theory, and who it reaches

This is the part of §22.04 that catches people who did not cause any injury. Under §22.04(b), an omission that causes one of the listed injuries is an offense if either:

1. the person has a legal or statutory duty to act; or
2. the person has assumed care, custody or control of the child, elderly individual or disabled individual.

The second route is the wide one, and §22.04(d) defines it without requiring any formal relationship. A person has assumed care, custody or control if they have by act, words or course of conduct acted so as to cause a reasonable person to conclude that they accepted responsibility for protection, food, shelter or medical care. A partner who moved in, a relative who was helping out, a friend who was minding a child for an afternoon can all fall inside it.

§22.04(a-1) adds a separate offense for owners, operators and employees of group homes, nursing facilities, assisted living facilities, boarding homes and intermediate care facilities who cause those injuries to a resident by omission.

There is a written way out. Under §22.04(i) it is an affirmative defense to the "assumed care" route that before the offense the actor notified the person in person that he would no longer provide the care, and notified the parents or a person acting in loco parentis in writing. The notice has to come first, and it has to be in that form, so it rarely helps after the fact. What it does show is that the statute contemplates people stepping out of a caring role, and that evidence about when someone's responsibility actually ended is worth assembling.

Why these cases come with other charges

§22.04(h) says that a person subject to prosecution under both this section and another section of the code may be prosecuted under either or both, and that §3.04, which would otherwise give a defendant the right to sever offenses joined in one criminal episode, does not apply. If sentences are assessed under both, they run concurrently.

So an incident can produce a §22.04 count and an aggravated assault count together, tried together, with no severance right. The concurrent-sentence rule limits the arithmetic damage, but it does not limit the effect on a jury of hearing two framings of the same event.

Probation, sealing and the rest

• Probation. Art. 42A.054(a)(10) removes judge-ordered community supervision for an offense under §22.04(a)(1) where it is punishable as a first degree felony and the victim is a child. Note how narrow that is: it does not reach second degree reckless cases, or first degree cases with an elderly or disabled victim.
• Sealing. Gov't Code §411.074(b)(1)(C) names §22.04 among the offenses for which an order of nondisclosure may never be granted. A conviction or a deferred adjudication under this section is permanent.
• Everything outside court. These allegations usually arrive alongside a child protective investigation, and the two proceed on different timetables and different standards of proof. What is said in one reaches the other.

Where these cases are defended

• Mental state, first and last. The gap between knowing and negligent conduct is the gap between 5 to 99 years and 180 days to 2 years. Most of the real work in a §22.04 case is here, not on whether an injury happened.
• Causation and the medical account. Timing of an injury, alternative mechanisms, pre-existing conditions and the limits of what an examination can actually establish are all live. A medical opinion about how an injury probably occurred is an opinion, and it can be tested.
• Who was responsible, and when. On an omission theory the State has to place the duty on this defendant at the moment it mattered. Who was present, who was caring for whom, and when a caring role began or ended are factual questions with documentary answers.
• Serious bodily injury versus bodily injury. This is an element with a statutory definition, not a description, and it moves the offense two levels.
• Whether the complainant meets the definition. Age 14 and 65 are bright lines. The disabled individual definition is not, and whether someone was substantially unable to protect themselves is provable either way.
• The parallel investigation. Statements given to investigators to be helpful are the most common source of the mental state evidence the State later relies on.

Common questions

This page is general legal information about Texas law, not legal advice about your case. Reading it does not create an attorney-client relationship. Laws change, so confirm the current rule with a licensed Texas criminal defense attorney about your specific facts. Request a free, confidential case review.