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Know your rights and responsibilities before using force for protection in Texas
You may have heard about “standing your ground” in your “castle” against intruders. Confusing news reports make it seem like the law grants the average citizen complete freedom to use any type of force, including deadly force, as a self-help remedy, whenever one feels threatened. This is a common misunderstanding of the law. Understanding the subtle nuances of Texas gun laws could mean the difference between having a justifiable defense at trial and serving time in prison.
In this article, I will discuss what is commonly called the Stand Your Ground Law or The Castle Doctrine in Texas, while highlighting several laws from Chapter Nine of the Texas Penal Code that allow for justifiable defenses at trial when a person uses deadly and non-deadly force.
Using Deadly Force for Self-Defense Purposes | No Duty To Retreat
While there is technically no law titled “Stand Your Ground” in Texas, there are provisions that allow for a legal justification for the use of force in a limited set of circumstances when a person has no duty to retreat. It is important to know when you do not have a duty to retreat, because you really do not want to get it wrong.
- A homeowner in his own home does not have a duty to retreat and may use deadly force to protect himself against an armed intruder.
- A business owner in her own place of business does not have a duty to retreat from her office, and may use deadly force to protect herself from an armed robbery.
- A truck driver, in his own truck, does not have to retreat and may use deadly force to protect against an armed car-jacking, as Texas law extends a person’s “castle” or home, to his car.
Texas law provides for a justifiable defense at trial when using deadly force if the person claiming self-defense:
(1) reasonably believed the deadly force is immediately necessary;
(2) had a legal right to be on the property (i.e. did not have a duty to retreat);
(3) did not provoke the person against whom deadly force was used; and
(4) was not engaged in criminal activity at the time the deadly force was used.
The law does not provide a justifiable defense at trial for someone who instigates and provokes a fight, and then uses deadly force. A person instigating a fight, in most cases, does have a duty to retreat and, therefore, will not be covered by the castle doctrine. Additionally, to receive the protection of the “no duty to retreat” provision, an actor must have acted in compliance with Texas Penal Code §9.31, the self-defense provision.
Self-Defense Law in Texas
Section 9.31 of the Texas Penal Code provides for a justifiable defense at the time of trial for self-defense, so long as the type of force used is reasonable and necessary in the moment to protect against an attacker. The law states, “[a] person is justified in using force against another when…the actor reasonably believes the force is immediately necessary to protect…against the other’s use or attempted use of unlawful force.” If the actor knew that intruder “unlawfully with force entered” his home, vehicle or place of employment; or if the actor himself was being removed (i.e. kidnapped); or if the intruder was attempting to sexually assault, rob, kidnap, or murder, then a person may use deadly force in self-defense under Texas law.
In contrast, the use of force is not justified in verbal provocations. Additionally, a person may not resist a reasonably conducted arrest by law enforcement and be justified in using force under this provision. Further, if an actor provokes a physical altercation and does not abandon the encounter, he may not use deadly force for self-defense as a justifiable defense at trial.
The Difference Between Deadly Force and the Threat of Force
The Texas Penal Code very clearly delineates between deadly force and the threat of using force. Deadly force is not the same as the “threat” of force.” Section 9.04 of the Texas Penal Code provides that a threat to cause death or serious bodily injury by the production of a weapon, if the actor’s purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.” Displaying a weapon with the goal of creating apprehension is considered a use of force, but not deadly force.
To illustrate, imagine a landowner is on his own property and sees a trespasser running towards him. If the landowner decides to turn in such a way so that the trespasser sees the landowner’s holstered, loaded gun and runs off the property, Texas law says this is likely a justifiable showing of force, and is not the use of deadly-force itself.
Defense of a Third Party | Defense of Others
A person is justified in using force or deadly force to protect a third party if, given the circumstances, the actor would be justified in using force or deadly force to protect himself against the unlawful force or deadly if it were happening to him. Further, the actor must reasonably believe the intervention is immediately necessary (i.e. He can’t wait until the police arrive).
However, if in the use of force to protect an innocent third party, another is injured or killed, the “justification afforded by [TPC 9.33] is unavailable in a prosecution for the reckless injury or killing of the innocent third party.”
Protection of One’s Own Property
In Texas, force may be used to protect one’s own property. A person in “lawful possession” of real property or personal property is justified in using force if “the actor reasonably believes the force is reasonably necessary to prevent or terminate the other’s trespass on the land…” However, the use of deadly force to protect one’s own property is limited. “A person is justified in using deadly force against another to protect land or property if (1) he is justified under TPC §9.41; (2) he reasonably believes using the force is immediately necessary to prevent commission of arson, burglary, or robbery; and, (3) the actor reasonably believes that the land or property cannot be protected or recovered by any other means [such as by calling law enforcement]. Tex. Penal Code Section 9.42.
Know Your Rights and Responsibilities
In conclusion, while Texas law does have a few “stand your ground” and “castle doctrine” type provisions, justification for use of force and deadly force must be proven, under a very limited set of circumstances. Further, even if a person has a justification for using force, he may still be arrested and face trial—these justifications are not a waiver of court proceedings altogether. A court of law must determine that an actor had legal justification to use force. Moreover, even though an actor may have been justified in using force—deadly or non-deadly—
he may face civil litigation and penalties associated with the use of force against another.
Using force for self-defense purposes is a serious response to dangerous and threatening situations. Texas law makes it abundantly clear that those who use force will only be justified in doing so if they meet specific criteria, given the circumstances, and acted as a reasonable person would have acted under the circumstances.
About the Author
Brandon W. Barnett is a criminal defense attorney and U.S. Marine officer. He is a partner with the Fort Worth criminal defense law firm, Barnett Howard & Williams PLLC. He is also an adjunct professor of Military Justice at Texas A&M University School of Law in Fort Worth. To learn more about Mr. Barnett or Barnett Howard & Williams PLLC, visit https://www.bhwlawfirm.com.