Texas Law - Use of Lethal Force in Defense of Property


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Bartholomew Roberts
August 22, 2013, 10:38 AM
Recently, we had another discussion on use of lethal force to defend property. As usual, the "you can shoot them in Texas!" comment came up. Rather than continue to derail that thread with a discussion of Texas-specific law (since the person asking the question was from Illinois), I thought I would start a separate thread to specifically address Texas law.

First, a little history is in order. I've always wondered about the Defense of Property statutes in Texas since they are more aggressive than most every other state in the union. As it turns out, Texas used to have some fairly restrictive laws concerning use of lethal force in self-defense. In at least one 1979 case, they ruled (under the laws at that time) that a woman being assaulted by her violent ex should have retreated out of her trailer home before attempting to use lethal force. The same court noted however, that had she been defending her property, there may well have been no duty to retreat. So it seems that at least at one time, the Texas defense of property statute was interpreted by courts to apply some of the traditional English common law concept of "Castle Doctrine" to Texans even though the statutes at that time specifically denied it. I would need to do a lot more research to verify that hunch; but that would go a long way in explaining why Texas has a much different outlook on Defense of Property than many states.

OK, let's look at what the current statute on Defense of Property says (note Texas law allows Defense of a Third Person's property (see. Sec. 9.43 of Texas Penal Code) under even more restrictions; but for the sake of this discussion I am limiting it to defense of your own property to keep an already complex subject more simple):

Sec. 9.41. PROTECTION OF ONE'S OWN PROPERTY. (a) A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other's trespass on the land or unlawful interference with the property.

(b) A person unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and:

(1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or

(2) the other accomplished the dispossession by using force, threat, or fraud against the actor.


Sec. 9.42. DEADLY FORCE TO PROTECT PROPERTY. A person is justified in using deadly force against another to protect land or tangible, movable property:

(1) if he would be justified in using force against the other under Section 9.41; and

(2) when and to the degree he reasonably believes the deadly force is immediately necessary:

(A) to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or

(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and

(3) he reasonably believes that:

(A) the land or property cannot be protected or recovered by any other means; or

(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

So what conditions do we need to meet in order to claim Defense of Property?

1. You must be in lawful possession of either land or tangible, movable property.
2. You must reasonably believe that force is immediately necessary to terminate the other's trespass on the land or unlawful interference with the property.
3. You must reasonably believe that the other has no claim of right to the property or that you were dispossessed of the property by force, threat or fraud.

Once these first three conditions are met, you are allowed under Texas law to use force; but not lethal force to defend your property. In order to use lethal force, you must meet those three conditions AND the following conditions:

4. Deadly force must be IMMEDIATELY necessary in order to:
(a) prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime OR
(b) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property;

5. You must reasonably believe one of the following:
(a) the land or property cannot be protected or recovered by any other means; OR
(b) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury

So once every single one of these conditions has been met, you have a right to use lethal force to defend property in Texas (though it is still possible you may be charged until you can provide sufficient evidence to a jury and/or law enforcement officials that you did in fact meet these conditions).

Now let's look at an example from Texas law (http://scholar.google.com/scholar_case?case=17400951875126520305&q). Mr. Jones is the owner of a Laundromat in Texas. When inspecting the Laundromat, he discovers that his machines have been broken into and all of his cash and several parts are missing. He spots the two men he believes did it in the parking lot and confronts them at 2:30p.m. The men state they have no idea what Mr. Jones is even talking about and continue to drink beer without relinquishing the property. Can Mr. Jones shoot them if they do in fact have his property?

1. Mr. Jones was in lawful possession of tangible, movable property (his money) so he appears to meet condition 1.
2. Is force IMMEDIATELY necessary to terminate the other's interference with property? A little gray area here. On the one hand, they have the property; but on the other hand, they are just standing there drinking beer. What is a jury going to say?
3. Mr. Jones appears to have been dispossessed of his lawful property by force or fraud, so he appears to be good for condition 3.
4. Now we are starting to get problematic for Mr. Jones - he is too late to prevent the imminent commission of theft - it has already happened. And the suspects in question are not fleeing immediately after the commission of the crime - they are standing in his parking lot drinking beer. Further, if the crime is theft, it didn't occur during the nighttime since it is 2:30pm. Mr. Jones doesn't meet ANY of the conditions for #4.
5. Could Mr. Jones recover the property by other means? Say by calling the cops on the people standing in his parking lot? Can he reasonably use less force than deadly force without being exposed to death or serious bodily injury? We don't really need the answers to these questions since we already know that Mr. Jones doesn't meet condition 4 and he must meet ALL 5 conditions to be able to use lethal force.

In real life, Mr. Jones did shoot one of the men and claimed self defense as well as defense of property. The trial court refused to even give an instruction on defense of property. He was convicted of aggravated assault and sentenced to eight years confinement. He appealed his conviction to the Houston Court of Appeals (1st Dist.) who upheld the refusal to give a jury instruction on Defense of Property because Mr. Jones failed to meet the conditions we discussed in item #4 above.

In my view, many of the conditions, particularly those in #5, depend on the jury seeing things the same way you do and have a great deal of subjective language. For that reason, I would not recommend using lethal force in defense of property in Texas unless the property is more valuable to you and your family than whatever prison sentence might result. However, if you do decide to take that risk - be sure you understand the necessary conditions and make sure you meet all of them.

As the Jones case shows, small subtleties (Is it day or night? Is the criminal fleeing IMMEDIATELY after the crime?) can make a big difference. Catch a criminal riding down the driveway on your bike at night and shoot him - you have met all of the conditions (assuming the jury agrees with you on #5). Catch the same criminal riding that same bike down a nearby street the next day? He is no longer fleeing immediately after the crime and you may have a problem with using lethal force. Little details like that can make the difference in whether you go to prison or not. So keep them in mind should you chose to rely on Section 9.42 to use lethal force.

Other good reading on the interpretation of Section 9.42 by Texas courts:
Johnson v. State, http://scholar.google.com/scholar_case?case=6384205821863426719&q
Ewing v. State, http://scholar.google.com/scholar_case?case=17609788601322432228&q
Kinback v. State, http://scholar.google.com/scholar_case?case=4171918244666289702&q

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Vern Humphrey
August 22, 2013, 11:30 AM
The best advice is, if you are defending your property, only use deadly force if you reasonably believe your life is in immediate jeopardy.

For example, if someone is stealing your stereo out of your car and runs off with it -- let him go. If he advances on you with a weapon, it's a different matter.

Kleanbore
August 22, 2013, 12:36 PM
Excellent post. Thanks very much for taking the effort.

Frank Ettin
August 22, 2013, 12:42 PM
Very helpful, Bart. Thank you.

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