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Defense of self, others and property
Summary of the topic
Subchapters C and D of Chapter 9 of the Penal Code are the justifications every person in Texas can raise. An officer meets them both as the person who judges someone else's force and as an actor who may rely on them. The structure is layered. Section 9.31 covers force in self-defense, section 9.32 adds a second layer for deadly force, and section 9.33 carries both across to a third person. Sections 9.41 to 9.43 do the same for land and tangible, movable property.
Section 9.31(a) justifies force when and to the degree the actor reasonably believes it immediately necessary to protect against another's use or attempted use of unlawful force. The belief is presumed reasonable only if three conditions all hold: the other person was unlawfully and with force entering the actor's occupied habitation, vehicle or place of business or employment, or removing the actor from one, or was committing one of the listed serious offenses; the actor did not provoke the other; and the actor was not engaged in criminal activity other than a Class C misdemeanor traffic offense.
Section 9.31(b) lists five situations where force is not justified, including verbal provocation alone and resisting an arrest or search the actor knows a peace officer is making. Section 9.31(c) is the one route to justified resistance to an officer, and it applies only where the officer uses greater force than necessary before any resistance is offered. Under sections 9.31(e) and (f), a person who has a right to be present, has not provoked the other and is not engaged in criminal activity has no duty to retreat, and the fact finder may not consider a failure to retreat.
Section 9.32(a) justifies deadly force where the actor would be justified in using force under section 9.31 and reasonably believes deadly force is immediately necessary, either to protect against unlawful deadly force or to prevent aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery or aggravated robbery. Section 9.33 justifies force to protect a third person where the actor would be justified in protecting himself under the circumstances as he reasonably believes them to be, and reasonably believes intervention is immediately necessary.
Section 9.41 justifies force by a person in lawful possession to prevent or end a trespass on land or interference with tangible, movable property. Section 9.42 allows deadly force to protect property only where force is justified under section 9.41, the actor reasonably believes deadly force is immediately necessary to prevent a listed offense such as arson, burglary, robbery or nighttime theft, and the actor reasonably believes the property cannot be protected or recovered by other means or that lesser force would risk death or serious bodily injury.
Section 9.43 extends sections 9.41 and 9.42 to a third person's land or property, and section 9.05 removes every Chapter 9 justification in a prosecution for recklessly injuring or killing an innocent third person.
Provisions this topic covers
- Tex. Penal Code secs. 9.31, 9.32, 9.33, 9.41, 9.42 and 9.43
- Tex. Penal Code secs. 9.05 and 9.34
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