Dissenting Opinion By
Justice WRIGHT.Because I disagree with the majority that appellant was charged with a crime committed by commission, and because I cannot conclude there is an affirmative legal duty on the part of a patient to independently determine what information is material and then disclose it to his doctor without being asked, I dissent.
I begin my analysis with a determination of whether the State charged appellant with a crime of omission or a crime of commission. The penal code provides that a person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession. Tex. Pen.Code Ann. § 6.01 (Vernon 1994). “Conduct” means an act or omission and its accompanying mental state. Tex. Pen. Code Ann. § 1.07(a)(10) (Vernon 1994). “Act” means a bodily movement, whether voluntary or involuntary, and includes speech. Tex. Pen.Code Ann. § 1.07(a)(1) (Vernon 1994). An omission is the failure to act. Tex Pen.Code Ann. § 1.07(a)(34) (Vernon 1994).
The indictment in this case charged appellant with possessing a controlled substance by fraud or deception. See Tex Health & Safety Code Ann. § 481.129(a)(4)(A) (Vernon Supp.1999). The State’s theory of the offense, as alleged in the indictment, was that appellant fraudulently obtained multiple prescriptions for a controlled substance by “present[ing] the same medical problem, to wit: ‘Trigeminal Neuralgia,’ and medical records to four doctors ... without informing each doctor of current and past treatment by the other doctors and did obtain multiple prescriptions for DILAUDID ... which are outside the scope of accepted medical practice and treatment.” The State presented evidence, through the stipulated facts, that appellant went to four different doctors, obtained multiple prescriptions for Dilaudid, and at no time informed the doctors that he was being treated by other doctors who had also prescribed Dilaudid.1 Thus, the State predicated appellant’s guilt on his failure to inform the other doctors of his current and past medical treatment. In other words, according to the State, appellant’s possession of the Dilaudid, for which he had valid prescriptions,2 was only illegal because appellant obtained it by failing to perform an act. Because appellant’s possession of the prescribed Dilaudid was not in and of itself sufficient to support illegal possession, and his possession of the Dilau-did can only be characterized as illegal *372because he failed to perform an act, I disagree with the majority’s conclusion that the conduct alleged by the State to be criminal was “the act of possessing or attempting to possess a controlled substance.” I would conclude that the offense alleged by the State was the offense of possessing or attempting to possess a controlled substance by fraud or deception. The offense, as alleged, had to be committed by engaging in certain conduct. According to the State, the illegal conduct was appellant’s failure to inform the other doctors of his current and past medical treatment. Again, an omission is the failure to act. Tex. Pen.Code Ann. § 1.07(a)(34) (Vernon 1994). Thus, I cannot agree with the majority’s conclusion that appellant was charged with a crime of commission rather than a crime of omission.
Because the State indicted appellant for failing to act, a crime of omission, the State must prove a corresponding legal duty to perform the act. See Tex. Pen. Code Ann. § 6.01 (Vernon 1994). Prior to 1993, in order to criminalize a failure to act, it was necessary for the State to prove that a statutory duty to act existed. See Billingslea v. State, 780 S.W.2d 271, 273-74 (Tex.Crim.App.1989). In 1993, the Legislature amended section 6.01(c). See Act of Feb. 18, 1993, 73d Leg., R.S., ch. 3 § 1, 1993 Tex. Gen. Laws 10, 10. The amendment changed the law to allow common law duties to form the basis of criminal sanctions from the former law requiring an explicit statutory duty to act. See Tex. Pen.Code Ann. § 6.01© (Vernon 1994).3 Thus, the 1993 amendment expanded the sources in which to find the necessary legal duty, encompassing common law duties as well as statutory duties. It did not, however, abrogate the necessity for the State to prove, as an essential element of the offense, the corresponding legal duty to act. Nor did the amendment overrule the portion of Billingslea analyzing whether the statute contained both the duty to act and the omission within its parameters. Thus, because the majority concludes that the necessary legal duty in this case is created by section 481.129 itself, and not by any other statute or law, I cannot agree with the majority that appellant’s reliance on Billingslea is misplaced.
In Billingslea, the defendant’s 94 year old bedridden mother lived with him. She was hospitalized for and later died from neglect. The defendant was charged with injury to an elderly person. See Tex. Pen. Code Ann. § 22.04 (Vernon 1994 & Supp. 1999). The indictment alleged that the defendant caused his mother serious bodily injury by failing to obtain medical care for his mother when she was physically unable to secure medical care for herself. Billingslea, 780 S.W.2d at 274. At the time of the offense, section 22.04 provided that a person committed an offense if he intentionally, knowingly, or recklessly or with criminal negligence, by act or omission, engaged in conduct that caused serious bodily injury to an individual 65 years of age or older. See id. at 273. The court of criminal appeals held that although section 22.04 provided that the omission was an offense, it did not provide for a statutory duty to care for an elderly person. Nor was the defendant under any other statutory duty to care for his mother. Thus, the court of criminal appeals concluded that the indictment was fundamentally defective for failing to include a statutory duty imposing a punishable omission. Id. at 274.
A statute may provide for both the duty to act and the omission within the parameters of the specific penal provision. JdLFor example, section 25.05 of the penal code provides that an individual commits an of*373fense if he intentionally or knowingly fails to provide support for his child younger than 18 years of age, or for his child who is the subject of a court order requiring the individual to support the child. See Tex. Pen.Code Ann. § 25.05 (Vernon 1994); Billingslea, 780 S.W.2d at 274. Another such example is found in a different subsection of the statute at issue in this case. In section 481.129(a)(5), the Legislature provided that a person commits fraud if the person knowingly and intentionally “furnishes false or fraudulent material information in or omits material information from an application, report, record, or other document required to be kept or filed under this chapter.” Tex. Health & Safety Code Ann. § 481.129(a)(5) (Vernon Supp. 1999). In both examples, the omission is predicated upon a clear duty to act, both of which are found in the same statute. See Billingslea, 780 S.W.2d at 274. In contrast, section 481.129(a)(4) provides that a person commits an offense if the person knowingly or intentionally “possesses or attempts to possess a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge.” See Tex. Health & Safety Code Ann. § 481.129(a)(4)(A) (Vernon Supp.1999). Admittedly, the plain and ordinary meaning of the words fraud and deception includes a failure to disclose material information, and, thus, I agree with the majority that section 481.129(a)(4)(A) proscribes a failure to disclose material information. I cannot conclude, however, that the use of the words fraud and deception in any way identify a duty on the part of the patient to determine what is material information and then disclose it to his physician. I would conclude that, like the statute at issue in Billingslea, section 481.129(a)(4)(A) in no way adequately informs those subject to prosecution that they must perform a specific duty to avoid punishment. See Billingslea, 780 S.W.2d at 275-76.
That, however, does not end the inquiry because section 6.01(c) allows the duty to be derived not only from statutes, but also from the common law. See Tex. Pen.Code Ann. § 6.01(c) (Vernon 1994). Neither the State nor the majority cites, and my research has not disclosed, a case imposing a common law duty on the part of the patient to determine what facts are material and then to disclose them to the physician. To the contrary, the law is clear that it is the physician’s duty to obtain a patient history in order to adequately diagnose and treat a patient. See, e.g., Harvey v. Stanley, 803 S.W.2d 721, 724 (Tex.App.-Fort Worth 1990, writ denied) (doctor was negligent in taking patient history); Granado v. Madsen, 729 S.W.2d 866, 874 (Tex.App.-Houston [14th Dist.] 1987, writ ref'd n.r.e.) (evidence supported jury’s negative finding on doctor’s failure to obtain adequate medical history and evaluation where evidence showed doctor met with patient prior to surgery and specifically inquired as to allergies, medical illnesses, present medication, and previous history of liver disease). The law also imposes a duty on the physician to adequately inform a patient about the risks or hazards of taking a particular drug. See, e.g., Barclay v. Campbell, 704 S.W.2d 8, 9 (Tex.1986) (doctor failed to inform patient of potential side effects of medication).4
Here, there is no evidence that any of the doctors asked for or received a medical history from appellant. The stipulation of evidence only provides that each of the doctors would testify that appellant never told them that he was being treated by other doctors. To place the duty on the patient, rather than the physician, to determine what information is material would ignore the nature of the doctor/patient relationship and the superior training and education of the doctor. Thus, I cannot conclude this to be the law.
*374In conclusion, I agree with the majority that appellant failed to disclose information to his treating physicians. Further, I agree with the majority that section 481.129(a)(4)(A) proscribes appellant’s conduct. However, because I would conclude that the State charged appellant with a crime of omission, rather than a crime of commission, and the State failed to prove either a statutory or a common law duty to “[inform] each doctor of current and past treatment by other doctors,” I would conclude that the evidence is legally insufficient to support appellant’s conviction under this indictment. The record does support and it goes unchallenged that .appellant suffers from a medical problem known as trigeminal neuralgia for which four different doctors prescribed the same medication. However, I wish to emphasize that the record does not contain evidence that any of the doctors asked for information about appellant’s prior and current medical treatment. If the stipulation indicated that they had done so, I would undoubtedly come to a different conclusion. Once a doctor inquires about a patient’s medical history, the patient is under an obligation to fully disclose the information requested by the doctor. In that situation, the determination about what information is material remains with the doctor. My disagreement with the majority opinion is that it judicially creates a new duty in the law for a patient to determine what information is material and then to disclose it to a physician. I am of the opinion that this is best left to the Legislature. Because there is no evidence that any of the doctors asked appellant for information which he then failed to disclose, I would conclude that the State failed to show the necessary duty on the part of appellant to act. I would reverse the trial court’s judgment and render a judgment of acquittal.
. The stipulated facts do not contain any evidence that the multiple prescriptions were outside the scope of accepted medical practice or treatment.
. Under section 481.062 of the health and safety code, a person may lawfully possess a controlled substance by order of a practitioner. See Tex. Health & Safety Code Ann. § 481.062 (Vernon Supp.1999).' Here, the doctors admittedly prescribed the Dilaudid for appellant because of his trigeminal neuralgia. . Neither the indictment, the evidence, nor this dissent suggests that the State must prove that the prescription was forged.
. The Legislature amended section 6.01© to replace the word “statute” with "law as defined by Section 1.07.” Section 1.07 defines "law” as "the constitution or a statute of this state or of the United States, a written opinion of a court of record, a municipal ordinance, an order of a county commissioners court, or a rule authorized by and lawfully adopted under a statute.” Tex. Pen.Code Ann § 1.07(a)(30) (Vernon 1994).
. I recognize that this is a criminal, not a medical malpractice, case. However, because the Legislature has authorized criminal convictions for failing to perform a legal duty — either statutory or common-law duties, to be complete, my analysis must include a discussion of the common law duties of patients and physicians.