There are more than 2.5 million Texans that are 65 years of age are older. Disturbingly, the National Council on Aging reports that one in ten adults over 60 have experienced abuse, with estimates as high as five million elders abused each year. Unfortunately, elder abuse is also a problem in Texas. According to the Texas Department of Family and Protective Services, Adult Protective Services (APS) conducted more than 84,000 investigations of elder abuse and neglect in 2018. While there is no doubt that elder abuse is a real problem, sometimes reports of abuse or neglect are misunderstandings between caregivers and their elderly family members or patients.
Types of Elder Abuse
While elder abuse is often physical, the charge can also include mistreatment that results in injuries or financial loss. In Texas, elder abuse can include physical, emotional, financial or sexual abuse, neglect, deprivation, confinement, and isolation.
Physical Abuse
Physical abuse can include any physical harm to an elderly person, including assault, sexual assault, or neglect. Neglect includes the deprivation of medical care or basic physical needs.
Emotional abuse
Often elderly adults can be vulnerable to emotional abuse because of health conditions or isolation. Emotional abuse includes denying an elderly adult the right to see or visit family, confining them in isolation, verbal degradation or threats of harm, or telling an elderly adult that family members were injured or killed.
Financial abuse
Seniors often lived on a fixed income, including social security or retirement savings. It is a crime to take advantage of an elderly person to misuse their benefits or income. Financial abuse might include taking their medications to sell them, cashing their benefit checks or depositing them into another account, or depriving them of their benefits.
Neglect
Abuse also includes the failure to act in certain situations. Failing to ensure an elderly person in your care receives basic care or failing to ensure they receive medical treatment.
Elder Abuse Complaints
Investigations of potential elder abuse usually happen after someone makes a complaint. Adult Protective Services (APS) then reviews and investigates complaints. APS is similar to Child Protective Services in that they investigate suspected incidents of abuse for adults with a disability or those over the age of 65. See Tex. Hum. Res. Code §48.001, et seq. (1995).
During an APS investigation, the agency may interview the victim of the alleged abuse as well as caretakers, family members, friends, and employees of a care facility. APS may also document physical abuse like bruising or swelling and review camera surveillance records in a care facility. They may check pharmacy and medical records to ensure that no one has stolen medication. APS may also check bank records to ensure that no one has exploited the victim financially.
Penalties for Elder Abuse
Texas law considers certain people to be more vulnerable, and if the alleged victim is a child, an elderly person, or someone disabled, an assault charge becomes more serious. For example, simple assault and sexual assault charges carry more severe penalties if the victim is an elderly person.
Injury to a Child, Elderly Individual, or Disabled Individual
Under Texas Penal Code §22.04, someone is guilty of injury to an elderly individual if they “intentionally, knowingly, recklessly, or with criminal negligence,” by act or omission, cause bodily injury, serious bodily injury, serious mental deficiency, or impairment to an elderly person. An elderly person is someone who is 65 years of age or older. See Tex. Pen. Code §22.04(c) (2017).
Texas defines “bodily injury” as “physical pain, illness, or any impairment of physical condition.” Tex. Pen. Code §1.07(8) (2019). Texas law defines “serious bodily injury” as “bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Tex. Pen. Code §1.07(46) (2019).
Law enforcement may charge owners, operators, and employees of Texas group homes, nursing or assisted living facilities, and intermediate and other care facilities with injury to an elderly individual if the victim is a resident of that facility. Caretakers of an elderly person can also face charges if they had assumed control, custody, or care of the victim or had a legal or statutory duty to act.
Penalties for injury to an elderly person vary based on intent:
Level of Intent |
Class of Crime |
Penalty |
Recklessly causes bodily injury or negligently causes bodily injury, serious bodily injury, serious mental deficiency, impairment, or injury. |
State jail felony |
Up to 2 years in jail and up to $10,000 fine. |
Intentionally or knowingly causes bodily injury. |
Third-degree felony |
Up to 5 years in prison and up to $10,000 fine. |
Recklessly causes serious bodily injury or serious mental deficiency, impairment, or injury; or if an employee of a facility providing care for the victim knowingly causes bodily injury. |
Second-degree felony |
Up to 20 years in prison and up to $10,000 fine. |
Intentionally or knowingly causes serious bodily injury or serious mental deficiency, impairment, or injury to an elderly person. |
First-degree felony |
Up to 99 years in prison and up to $10,000 fine. |
Simple Assault
Simple assault is usually a Class C misdemeanor punished with a fine of no more than $500. However, assault against an elderly person can result in a Class A misdemeanor punished with up to one year in jail and up to $4,000 in fines.
Sexual Assault
Sexual assault is a second-degree felony in Texas, punished with two to 20 years in prison and a fine of up to $10,000. But a person accused of sexual assault against an elderly person can see their charge bumped up to aggravated sexual assault. Aggravated sexual assault carries penalties of five to 99 years in state prison and a fine of up to $10,000.
Failure to Report
In Texas, it is also illegal to fail to report an incident of elder abuse. A person who has cause to know that an elder person is being abused, neglected, or exploited and knowingly fails to report it may face a Class A misdemeanor punishable by up to one year in county jail and up to $4,000 in fines. Although Texas law prohibits making a false claim of elder abuse, anyone who reports elder abuse in good faith can remain anonymous. Good faith reporters of elder abuse will also be protected from civil or criminal liability. See Tex. Hum. Res. Code §48.052.
Caretakers
Any caretaker who commits elder abuse or fails to report elder abuse may lose their license to practice in Texas. They may also be fired from their current employment and have to report their conviction on any future employment application.
Affirmative Defenses
In Texas, there are some affirmative defenses to elder abuse charges, which means that you admit to the act, but you have a justification for doing so. These are narrow exceptions but include
Termination of Care
The defendant may have an affirmative defense to elder abuse charges if:
o The defendant notified the elderly person face-to-face that care would be ending;
o The defendant notified another person responsible for the elderly person that care would be ending in writing;
o The defendant notified APS in writing that care would be ending;
o Written noticed included the elderly person's name and address, the defendant's name and address, the type of care provided, and the date the defendant will discontinue care.
Religion
It is an affirmative defense if the charges are related to “the act or omission was based on treatment in accordance with the tenets and practices of a recognized religious method of healing with a generally accepted record of efficacy.”
Victims of Family Violence
If law enforcement charges someone with “failure to protect,” or injury to an elderly person by omission, the defendant has a legal defense if:
o There is no evidence that the defendant knew of any previous injury to the elderly person and failed to report it;
o The defendant was a victim of family violence committed by the same person charged with injuring the victim; and
o At the time they failed to act, the defendant reasonably believed that any attempt to prevent the person from hurting the elderly person would “have an effect.”
General Defenses
In addition to affirmative defenses, there are other strategies your defense attorney may use. If you didn't commit the crime, this could include a mistake of fact or denial of the charge. In other cases, your attorney can challenge the evidence at trial, including witness testimony, and ensure that law enforcement has not violated your constitutional rights.
The attorneys at the Doug Murphy Law Firm are Board Certified in criminal defense by the Texas Board of Legal Specialization, an achievement very few Texas attorneys reach. Our attorneys offer smart, aggressive legal defense and have proven success in the courtroom. Attorneys at Doug Murphy Law are also sought as experts on criminal law by attorneys Texas. If you or someone you love is facing elder abuse charges, call us at 713-229-8333 or contact us online.
