Texas Penal Code §22.04: Assaultive Offenses
Texas Penal Code §22.04 is the statute used most often in prosecution of physical or mental abuse of the elderly. Section 22.04 creates a felony offense if a person intentionally, knowingly, or recklessly by omission, causes an elderly individual bodily injury or serious mental deficiency, impairment, or injury.
If the defendant is an owner, operator, or employee of a group home, nursing facility, assisted living facility, intermediate care facility for persons with mental retardation, or other institutional care facility they can be subjected to §22.04 through criminal negligence by omission if the complainant is a resident of the home or facility and if defendant had a legal or statutory duty to act or has assumed care, custody, or control of the elderly complainant.
For purposes of omission the defendant has assumed care, custody, or control if he or she has by act, words, or course of conduct acted so as to cause a reasonable person to conclude that he has accepted responsibility for protection, food, shelter, and medical care for an elderly individual. A defendant acting in the capacity of owner, operator, or employee of a group home or facility is considered to have accepted responsibility for protection, food, shelter, and medical care for residents of the group home or facility.
Texas Penal Code §32.53: Exploitation of Child, Elderly Individual, or Disabled Individual
Texas Penal Code §32.53 creates a third degree felony offense if a person intentionally, knowingly, or recklessly causes the exploitation of an elderly individual. “Exploitation” means the illegal or improper use of a child, elderly individual, or disabled individual for monetary or personal benefit, profit, or gain. This statute is very broad in that it criminalizes the illegal or improper use of the individual or their resources. Prosecution under this section may not require the victim to testify, especially if the evidence shows that the victim is incapacitated and/or unable to know that the defendant was illegally or improperly using their resources.
Texas Penal Code §32.45: Misapplication of Fiduciary Property or Property of Financial Institution
If the offender holds a power of attorney, is a trustee, or is any other kind or fiduciary or in a confidential relationship, they can be prosecuted as a fiduciary under §32.45. Section 32.45 provides that a person commits an offense if he or she intentionally, knowingly, or recklessly misapplies property he or she holds as a fiduciary or property of a financial institution in a manner that involves substantial risk of loss to the owner of the property or to a person whose benefit the property is held.
A fiduciary includes (a) a trustee, guardian, administrator, executor, conservator, and receiver, (b) an attorney in fact or agent appointed under a durable power of attorney, (c) any other person acting in a fiduciary capacity, but not a commercial bailee unless the commercial bailee is a party in a motor fuels sales agreement with a distributor or supplies, and (d) an officer, manager, employee, or agent carrying on fiduciary functions on behalf of a fiduciary. Misapply means to deal with property contrary to an agreement under which the fiduciary holds the property or a law prescribing the custody or disposition of the property.
The punishment under §32.45 differs depending upon the amounts as follows:
- Class C misdemeanor if the value of the property misapplied is less than $20;
- Class B misdemeanor if the value of the property misapplied is more than $20 but less than $500;
- Class A misdemeanor if the value of the property misapplied is more than $500 but less than $1,500;
- State jail felony if the value of the property misapplied is more than $1,500 but less than $20,000;
- Third degree felony if the value of the property misapplied is more than $20,000 but less than $100,000;
- Second degree felony if the value of the property misapplied is more than $100,000 but less than $200,000; or
- First degree felony if the value misapplied is $200,000 or more.
When the offense is committed against an elderly, the punishment will be increased to the next higher category of offense. For example, if the property misapplied was $300, instead of being a Class B misdemeanor, it will be a Class A misdemeanor.
Texas Penal Code §31: The Theft Statutes
Texas Penal Code Section 31 and its component subsections are referred to as the “Theft Statutes.” Texas Penal Code §31.03(a) provides that a person commits an offense if he unlawfully appropriates property with the intent to deprive the owner. The appropriation is unlawful if it is without the owner’s effective consent.
- Theft by Deception. The Penal Code provides several different definitions of theft. Under §31.01(1)(A) “deception” means creating or confirming by word or conduct a false impression of law or fact that is likely to affect the judgment of another in the transaction, and that the actor does not believe to be true. Under §31.01(1)(B), “deception” means failing to correct a false impression of law or fact that is likely to affect the judgment of another in the transaction that the actor previously created or confirmed by words or conduct that the actor does not now believe to be true. Under §31.01(1)(E) deception includes promising performance that is likely to affect the judgment of another in the transaction and that the actor does not intend to perform or knows will not be performed, except that the failure to perform the promise in issue without other evidence of intent or knowledge is not sufficient proof that the actor did not intend to perform or know the promise would not be performed. It is important in cases of theft by deception that the victim will testify at trial. The victim must be able to clearly articulate exactly what the deception was and that it did indeed affect the judgment of the victim in the transaction.
- Theft by Diminished Capacity. Effective consent includes consent by a person legally authorized to act for the owner. However, consent will not be effective if it is induced by deception or coercion, given by a person that the actor knows is not legally authorized to act for the owner, given by a person who by a reason of youth, mental disease or defect, or intoxication is known by the actor to be unable to make reasonable property disposition, given solely to detect the commission of an offense, or it is given by a person who by reason of advanced age is known by the actor to have a diminished capacity to make informed and rational decisions about the reasonable disposition of the property. In the case of “diminished capacity” the state of the diminished capacity must exist at the time of the offense and must be the reason that the consent was given. Most often due to “diminished capacity” the victim is not able to testify at trial because he or she still has diminished capacity and therefore, is not a competent witness. Since the victim, due to his or her diminished state, provides no assistance in terms of testimony or information to the prosecution, it is possible to prosecute this type of offense even if the victim passes away before trial. The two main elements that a prosecutor must prove in cases of theft by diminished capacity are (1) that the victim has diminished capacity at the time and (2) that the perpetrator knew.