A Real Test of Texas' New Castle Doctrine Law

[lanternlad1]

Flintknapper:


Sec. 83.001. CIVIL IMMUNITY A defendant who uses force or deadly force that is justified under Chapter 9, Penal Code, is immune from civil liability for personal injury or death that results from the defendant's use of force or deadly force, as applicable.

Its quite clear. They can't sue. Knowing one's rights in essential to exercising them.

Gotta love Texas

 

[Flintknapper]

Yes, I am aware of Sec. 83.001.

I think you have forgotten "where" this is determined. (In court).

Here is the answer from a Texas Attorney on just this subject:

A lawsuit can still be filed, but the defendant will win and will do so early in the process. There is a good chance the defendant will be awarded attorney fees as well, but this isn't guaranteed. Some judges flat won't award attorneys fees, some will. More importantly, no attorney is going to take a case and spend money on it when they cannot win.

A law cannot be passed that prevents someone from filing a suit. It would be unconstitutional, as it should be. We can't tell people you have no access to the courts to address grievances.

 

[Owens]

From a post on pg1:

...we do not have to determine intent. If someone breaks into your home, they are there to harm you.

That is THE basis of Castle Doctrine. It is presumptive.

 

[revjen45]

We moved to TX in Sept.'03, back to WA in 09/06. Tx law allows one to shoot in defense of property after dark, and it doesn't matter what he's stealing. After dark you can shoot somebody who is stealing dirty socks. That doesn't necessarily make it a good idea but it's legal. Any shooting goes to the grand jury, even if a berserk crackhead waving a machete kicks in your door. Under such conditions one would undoubtedly be no billed, and probably widely loved and admired. TX exists in a parallel universe, and they don't care how they do things anywhere else.

 

[brickeyee]

“...informs them that they can't because of the Castle Doctrine Law.”

“Sec. 83.001. CIVIL IMMUNITY A defendant who uses force or, is immune from civil liability for personal injury or death that results from the defendant's use of force or deadly force, as applicable.”

This will appear before a court.
Laws that prohibit civil suits for torts have been repeatedly overturned.
The courts allow the person to seek redress.
A decision as to “deadly force that is justified under Chapter 9, Penal Code” will be decided before a court.
The statute provides a defense, but a court will be required to rule on the facts of the applicability of “Chapter 9, Penal Code”.

The same thing happened in Florida over a shooting.
If you kill someone expect to have to defend yourself.

 

[The Annoyed Man]

If I'm not mistaken, isn't there an update to the Castle Doctrine currently before the legislature which includes one's vehicle as property that may be defended with deadly force?

Regardless, I work in an area that is not IN Oakcliff, but it isn't that far away either. It's a little industrialized area near Inwood and the 35E. Several of the business owners along the block where our business is located actually reside at their places of business. So anybody breaking into their workshop IS breaking into their home.

Also, I had read somewhere, although I don't know it to be true, that before the Castle doctrine in Texas, there was no implied duty to flee your home if it was invaded. I thought the Castle doctrine merely codified the right to defend one's home into law in such a way as to protect a homeowner from lawsuit if they kill someone who either enters their home illegally, or commits a violent assault upon the resident after having been invited in.

But seeing as how there is no "J.D." after my name, don't pay me no nevermind.

 

[springmom]

There is nothing currently before the legislature because it isn't in session and won't be again until 2009. What you are thinking of has already been passed and became law as of Sept 1 this year.

Springmom

 

[ZeSpectre]

1. If it isn't yours don't mess with it.
2. Don't go where you aint invited.
3. Ask permission before entering someones property.
4. If you do not follow rules 1 thru 3 and you get killed it is your own fault and not the person who shot your sorry !@#.

Things my Dad taught me when I was 5 yrs. old.

Worth repeating I think.

 

[lanternlad1]

Flintknapper...

"I think you have forgotten "where" this is determined. (In court)"


Why, if laws against suing are unconstitutional, does TX State law prohibit unjustly accused persons who have served time from suing the State of TX for compensation? It makes sense that a lawyer would say such suits are unconstitutional, that is their bread and butter. But just because they say it, does not make it so. Attorneys say many things. One said O.J. was innocent...of burglary.

Also, where in the Constitution is bringing lawsuits for compensation guaranteed? I think lawyers are twisting the Constitution to their own ends.

 

[Bartholomew Roberts]

I disagree with Mr. Roberts. It is my understanding that under the old law, you had a duty to retreat from your home, if reasonably possible.

No. Here is the key language from the 2006 statute (Texas Penal Code 9.32 2006): "b) The requirement imposed by Subsection (a)(2) does not apply to an actor who uses force against a person who is at the time of the use of force committing an offense of unlawful entry in the habitation of the actor."

The new law expanded the "no duty to retreat" to any place where you have a legal right to be.

A decision as to “deadly force that is justified under Chapter 9, Penal Code” will be decided before a court.
The statute provides a defense, but a court will be required to rule on the facts of the applicability of “Chapter 9, Penal Code”.

Exactly. For that matter, would a no-bill of a Texas grand jury even be admissible as evidence in a civil suit? I don't think it would; but I am not as knowledgable as I would like to be on the subject. Anybody else who is better informed?

Tx law allows one to shoot in defense of property after dark, and it doesn't matter what he's stealing.

Remember Section 9.42 of the Texas Penal Code requires that you believe deadly force is immediately necessary to prevent the imminent commission of the crime or fleeing immediately after the crime AND that:

"(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."

Texas does have a strong bias towards property rights; but as you can see (3)(a) leaves some leeway for a prosecutor to make your life miserable if he thinks you were a bit too trigger happy.

 

[Ala Dan]

+1 for "The Castle Doctrine Act"

We even have it in Alabama~!

 

[usmarine0352_2005]

I don't believe the new Castle doctrine provides that a person "can't" sue.

Harder to do when your dead, I guess.

 

[Aguila Blanca]

"He's got a right to defend his property. What gives a stranger the right to go in and vandalize or burglarize his business?" said Dallas police Sgt. Gene Reyes. "He's within every legal right to do this."

If I see many more official statements like that, I may have to reconsider my determination never to return to my native state.

What an uncommonly enlightened and civilized attitude!

 

[Outlaws]

I would have to know a lot more detail of how much of a threat these burglars were to the store owner. I realize that that is not the Texas criteria but it sure as hell should involve some common sense and a tad of respect for human life.
On the surface, it sure looks like he used excessive force - much more than was needed to stop the act that was in progress. (How much of a threat is a guy halfway into the store coming in thru a pryed-open window?!?

Breaking and entering with intent to burglarize takes a special set of morals...its not too far fetched to assume that a violent disposition accompanies that.

 

[never_retreat]

Good shot. Might be time to put up a score board though.
Bad guys 0 good guy 2 1/2

 

[The Annoyed Man]

There is nothing currently before the legislature because it isn't in session and won't be again until 2009. What you are thinking of has already been passed and became law as of Sept 1 this year.

I stand corrected. Thanks for the heads up.

 

[gunsmith]

only a gifted psychic could tell you.

How much of a threat is a guy halfway into the store coming in thru a pryed-open window?!?

I aint no psychic so I'm letting .357 eliminate any possible threat.

How much of a threat is a guy halfway into the store coming in thru a pryed-open window?!?

<john wayne voice>he is less of a threat if he's dead pilgrim<john wayne voice>

 

[RLsnow]

if you came into my house without letting me know, i can only assime you will do me harm, and act accordingly.

better safe than sorry?

 

[Flintknapper]

lanternlad1 Wrote:

Sec. 83.001. CIVIL IMMUNITY A defendant who uses force or deadly force that is justified under Chapter 9, Penal Code, is immune from civil liability for personal injury or death that results from the defendant's use of force or deadly force, as applicable.

Its quite clear. They can't sue. Knowing one's rights in essential to exercising them or commenting on them.

Lad,

Here is a link to the Texas Penal codes, you should read them.

http://tlo2.tlc.state.tx.us/statutes/petoc.html

The codes applicable here are: § 9.31. SELF-DEFENSE and § 9.32. DEADLY FORCE IN DEFENSE OF PERSON.

Contained in each of these… is the following:

§ 9.06. CIVIL REMEDIES UNAFFECTED. The fact that conduct
is justified under this chapter does not abolish or impair any
remedy for the conduct that is available in a civil suit.

Here is the analysis of the bill that states the same thing.

http://www.capitol.state.tx.us/tlodocs/80R/analysis/html/SB00378H.htm

You have gotten off track and confused Immunity with the right to examine Liability. The only way to determine this is in court when a civil suit has been brought against you.

The new bill makes it extremely unlikely that a person would prevail in a civil suit, or that an attorney would even take the case, but in no way impairs your right to sue.

You did get one thing right however:

Knowing one's rights in essential to exercising them or commenting on them.

This is good advice, apply as you see fit.

Flint.

Addtional information from a Texas Lawyer:

Here is the open courts provision of the Texas Constitution:

All courts shall be open, and every person for an injury
done him, in his lands, goods, person or reputation, shall have remedy by due course of law.

A civil remedy is the cure for a cause of action. Each cause of action is tied to a number of available remedies. If civil remedies are unaffected, it only states that all available remedies are still available.

The Civil Immunity section of the CPRC means that, in cause of a suit being filed, the defendant will file an early motion, i.e, summary judgment, to dispose of the issue of liability. After the court grants the motion for summary judgment, all causes of action that are affected by the statute are resolved. Any other basis for liability would then proceed.

You can always file suit if you can pay the filing fee. You cannot always win the suit that you file. Section 83.001 makes it impossible to win a case affected by that statute. It does not make it impossible to sue.

 

[lanternlad1]

Nice to know you were adult enough not to take it personally. Actually, when I wrote the bit about commenting on them, I *was* talking about myself. Sheesh, ease up on the caffeine.

Just curious as to where you got your J.D from. I don't have one you see, so all I can do is read the law and interpret it the best I can. That is all anyone can do.

"Section 83.001, Civil Practice and Remedies Code, is also amended to create an immunity from civil liability for personal injury or death if the defendant was justified in using force or deadly force under Chapter 9 of the Penal Code. S.B. 378 changes the heading of this section to "Civil Immunity," and deletes existing text relating to an affirmative defense to civil action arising from the use of justifiable deadly force."

Civil Immunity. That tells me they either can't sue, or their attorney will advise them not to. Either way, I don't worry about it. I have nothing they can touch anyway.

"You have gotten off track and confused Immunity with the right to examine Liability.

The new bill makes it extremely unlikely that a person would prevail in a civil suit, or that an attorney would even take the case, but in no way impairs your right to sue.

A law cannot be passed that prevents someone from filing a suit. It would be unconstitutional, as it should be. We can't tell people you have no access to the courts to address grievances."

Ok, professor, show me where the Constitution guarantees "Right to Sue". Texas Constitution or Federal. Either is good.

 

[Flintknapper]

Just wanted to straighten things out so no one is misguided.

And.....I don't take jab's unless jabbed at first.

End of discussion.

 

[Deanimator]

I would have to know a lot more detail of how much of a threat these burglars were to the store owner. I realize that that is not the Texas criteria but it sure as hell should involve some common sense and a tad of respect for human life.

Darwin is a cruel, cruel man.

Best to steer clear of him...

 

[Werewolf]

Darwin is a cruel, cruel man.

Best to steer clear of him...

True... because in the end - he always wins!

 

[Flintknapper]

Lanternlad1 wrote:

Ok, professor, show me where the Constitution guarantees "Right to Sue". Texas Constitution or Federal. Either is good.

Well, I did that already in my first post to you, but here it is again from the Texas Constitution. Why is it so hard for you to accept that you were mistaken?

Sec. 13
Quote:
All courts shall be open, and every person for an injury
done him, in his lands, goods, person or reputation, shall have remedy by due course of law.

http://texaspolitics.laits.utexas.edu/html/cons/features/0402_01/TX.pdf

It is a small (but important) point to recognize that you CAN be sued in a Civil Court despite the Civil Immunity law.

Everyone is afforded "their day in court" if they wish. It will be a very short day because CI means you wouldn't have a snowball's chance in hell of winning. But it DOES NOT mean you can't take it to court.

 

[mrwood]

Quote:
Police said Mr. Walton also noticed another man outside Sunday. Mr. Walton shot and wounded that man. He escaped, but a witness eventually led police to him.
---------------

This may come back to haunt him more than the two dead perps.As was said in a prior post, we can't know the whole story. Did this third guy pose a threat? Does Texas castle doctrine cover property outside the domicile? How far was the guy from the structure? If he was just loitering around outside, then Mr. Walton may spend some time in in a State institution.

+1 on this observation from elrod !

Interesting discussion about the Castle Doctrine, but what about shooting the guy outside?!? I would be interested in your thoughts.