DANGER! TEXAS LAW ON DEADLY FORCE DEFENSE OF PROPERTY

ATTORNEY ANDREW F. BRANCA

LAW OF SELF DEFENSE LLC

Attorney Andrew Branca of Law of Self Defense, LLC, addresses Texas law regarding defense of property using deadly force. The following discussion is intended to keep firearm owners better informed, as well as more confident and able to make more informed decisions in defense of yourself, your family and your property.

Recently, the news has reported a number of use-of-force cases involving people who chose to utilize deadly force in defense of mere personal property. These stories include that of a Nebraska woman who shot a shoplifter last month, a Minnesota man who shot a car thief earlier this year, and a Memphis man who used a sawed-off shotgun to shoot a man stealing a chainsaw last week.

In 49 of our states, the use of deadly force to defend mere personal property in the absence of an imminent threat to a person or persons, is simply unlawful. Period. There is, of course, the 50th state that is the exception to this general rule, and that is the great state of Texas. Indeed, it’s inevitable that among the comments regarding the news stories above, there will those along the lines of, “Well, it woulda been legal to kill that thief in Texas!”

Does Texas allow for the use of deadly force in defense of personal property? Yes. Under any and all conditions? No! And understanding the conditions that must be met to trigger that deadly force privilege can easily mean the difference between having acted lawfully on the one hand, and spending 99 years in a Texas prison on the other.

Ready to learn how the Texas law of deadly force defense of property really works? Stand by!

Least Defensible vs. Highly Defensible Property

It’s pretty widely known within the gun community that Texas is the only of the 50 states to have any provision whatever for the use of deadly force in defense of mere personal property. Personal property is a class of property that I often refer to as “least defensible property,” (LDP) as distinguished from “highly defensible property” (HDP).

Highly defensible property, such as one’s home, often benefits from special legal provisions for the use of deadly defensive force in the context of HDP, whereas that use of force would not be lawful in defense of LDP.

Generally speaking, LDP, or mere personal property, consists of things like simple physical items that can be lawfully possessed, but that do not meet the definition of highly defensible property. Examples would be your cell phone, your wallet, merchandise in a store and even unoccupied motor vehicles. (An occupied motor vehicle is treated as HDP in many states, but not all.)

For a comprehensive understanding of the distinction between highly defensible property and least defensible property, the special provisions of law that apply to each, as well as defense of property law in general, you might consider taking the Law of Self Defense course, Defense of Property, which covers the defense of property law of all 50 states. You can learn more about that course by clicking here. For the purposes of this discussion, however, I’ve gone as far as I’ll be going with generalized definitions of different classes of property.

When it comes to the use of deadly defensive force, all 50 states have provisions that allow for such force in the context of defending innocent persons against a deadly force threat. The key is that there is a threat to persons. If there is no threat to persons, however, 49 states hold that a threat to mere personal property alone never justifies the use of deadly defensive force.

In those 49 states, if deadly defensive force is used in defense of mere personal property, in the absence of a threat to persons, that use of force is unlawful, and the user of force bears 100% criminal liability for their unlawful conduct.

Period.

Lethal-Force Defense of Property in Texas

As noted above, Texas is the exception to this generalized rule, which 49 states abide by, and it does have a statutory provision that allows for the use of deadly defensive force in defense of mere personal property.

Saying that Texas has such a provision, however, is not the same thing as saying that Texas provides an unlimited license to kill over mere personal property. It most certainly does not. Indeed, the Texas provision for the use of deadly force in defense of personal property contains a great many conditions that must be met in order to qualify for protection under that statute.

To complicate matters, while some of those conditions are objective and relatively black-and-white, others are highly subjective – and anything that’s subjective in a justification statute ought to set off alarm bells because it’s a particularly vulnerable target of attack by a prosecutor. More on that later.

What happens if you fail to meet even one of those conditions? You can’t justify your use of deadly force in defense of property under that statute – in other words, your use of force in defense of property was as unlawful as it would have been in any of the other 49 states. Absent legal justification, your use of force was simply a crime. If you’ve managed to kill the person you used force against, you’d have committed manslaughter or murder. If murder, you’re looking at 99 years in prison.

I don’t know about you, but there’s not a lot of personal property I own that I’m willing to risk 99 years in prison over.

With all those generalities out of the way, let’s take a look at the legal details – because, as I’m sure you know, in the law the details make all the difference.

Texas Penal Code §9.42

To get down to specifics, the Texas statutory provision that allows for the use of deadly force in defense of mere personal property is Penal Code §9.42. Deadly Force to Protect Property. I’ll cite relevant portions of the statute throughout this post, but you can also read it in its entirety here: Texas Penal Code §9.42.

This is a reasonably straightforward statute in terms of construction (meaning the way lawyers refer to how a statute is phrased and structured), so let’s work our way through it step-by step.

The statute’s introductory sentence tells us its purpose and also cautions us that there are conditions:

A person is justified in using deadly force in against another to protect land or tangible, movable property: …”

See how that sentence ends with a colon, rather than a period? That tells us that the privilege of using deadly force in defense of property under §9.42 isn’t a blanket privilege, but rather is one subject to conditions – all the conditions that follow that colon.

Care to guess what the very first of the conditions is on the privilege to use deadly force in defense of personal property? That you first meet all the conditions for the use of non-deadly force in defense of personal property, which are set out in the immediately preceding statute, Texas Penal Code §9.41. Protection of One’s Own Property.

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

Controlling Reference of Statute §9.42 by Statute §9.41

I expect that of all the people talking on the internet about the right in Texas to kill property thieves, maybe 1% ever bothered to actually read the controlling statute, §9.42 (deadly defense of property). Of those that have, maybe 1% of them have ever bothered reading the statute that’s a controlling condition by reference, §9.41 (non-deadly defense of property). But the fact is, if you fail to meet the conditions of §9.41, you automatically also fail to meet the conditions of §9.42.

It’s not my purpose to focus on §9.41, so I’ll just point out one easy way to fail to qualify for the use of even non-deadly force under §9.41, and thus by extension also the use of deadly force under §9.42: Use your force in defense of property that’s in some other person’s possession – that is, in defense of some other person’s property.

That’s right. §9.41 doesn’t privilege you to use any degree of force in defense of some other person’s property. Defense of their property under §9.41 is on them, not on you. By extension, then, you also can’t use deadly force in defense of some other person’s property under §9.42.

Although Texas law does have provisions for the use of force, even deadly force, in defense of a third person’s property, under yet another statute, §9.43, that statute imposes even further conditions and “technicalities” before that use of force is lawfully justified. (For those of you who are interested, we’ll cover the additional conditions of §9.43 in another blog post sometime in the next few days.)

You may be thinking that you’d be disinclined to use force in defense of another person’s property under any circumstances, and that’s probably a prudent decision, but did you know that doing so would be without any legal justification whatsoever unless you also met those additional conditions of §9.43? [This paragraph has been clarified to correct an earlier overly broad statement on Texas law regarding defense of others’ property.–AFB]

Most people I ask do not know this “technicality” of Texas defense of property law, but it’s such “technicalities” that mean the difference between a lawful use of force and a 99-year prison sentence.

So, let’s leave §9.41 right there. I do, of course, urge you to read the whole thing. Also, §9.41 contains additional conditions that must be met before even the use of non-deadly defensive force in defense of property can be justified.

For purposes of this post, however, we’ll simply note that the protections of §9.42 for the use of deadly force in defense of property don’t even begin until the conditions of §9.41 for the use of non-deadly force in defense of property have already been met.

Technicalities for Protection Under §9.42

The next set of conditions for §9.42’s privilege to use deadly force in defense of property come in a pair of pairs. By that, I mean that there are a pair of following paragraphs, (2) and (3), and the conditions of both of those must be met for protection to be granted under §9.42. Fail to satisfy the conditions of either (2) or (3), and you’ve failed to satisfy §9.42.

Each of those paragraphs, however, has two possible methods of meeting their requirements, an (A) method and a (B) method. Therefore, there’s a sub-paragraph (2)(A) and a sub-paragraph (2)(B), and if you meet the conditions of either of those sub-paragraphs, you’ve satisfied paragraph (2).

There’s also a sub-paragraph (3)(A) and a sub-paragraph (3)(B), and if you meet the conditions of either of those sub-paragraphs, you’ve ratified paragraph (3).

One way or another, however, the conditions for both paragraph (2) and paragraph (3) must be met, because both are required conditions for legal protection under §9.42.

I know that all sounds rather abstract, so let’s look at actual language of (2) and (3), respectively. First, paragraph (2):

(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

So, in order to trigger the legal justification for using deadly force in defense of property under §9.42, it is required that either (2)(A) and/or (2)(B) are met.

These two paragraphs are very similar, but not quite. For one thing, (2)(A) speaks to preventing the “imminent commission” of a listed criminal act – to keep something bad from happening in the first place – whereas (2)(B) speaks to preventing the flight of someone who has already committed a listed criminal act.

Firstly, note that the lists of criminal acts in each paragraph are not the same.

Paragraph (2)(A) is limited to instances of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime.

Paragraph (2)(B) is limited to instances of burglary, robbery, aggravated robber, or theft during the nighttime.

See what crimes have gone missing? Arson and criminal mischief have disappeared in paragraph (2)(B).

And see what crime has acquired an additional condition? Theft during the nighttime. Under (2)(B), theft during the nighttime qualifies only if the thief is escaping with the property. If they’ve dropped the property behind, the prior theft no longer satisfies (2)(B). Might the thief have dropped the property without you being aware that they’ve done so? If so, here’s another “technicality” that means the difference between acquittal and a 99-year prison sentence.

Note also that some of the listed criminal acts, such as theft, qualify only if they occur “during the nighttime.” What does that mean? The hours of darkness – between sunset and sunrise – obviously aren’t even consistent across the year, with more hours of darkness each day in the winter and fewer in the summer. If it’s dusk or dawn, are we in the hours of darkness? Can we know?

Here is yet another “technicality” that means the difference between acquittal and a 99-year prison sentence.

Let’s assume you’ve met the conditions of either (2)(A) or (2)(B), however, and have therefore satisfied paragraph (2) of §9.42. You’re still not justified in having used deadly force in defense of property unless you also satisfy paragraph (3) of §9.42.

(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.

Let’s consider (3)(A): “the land or property cannot be protected or recovered by any other means.” That phrase “any other means” seems pretty broad. Alternate scenarios arise. For example, if the thief is fleeing on foot, instead of simply shooting him, might you not have instead jumped into your car, chased him down, and fought him with your fists to recover your property?

That might seem like an ill-advised means to protect or recover the property, and it probably is, but is it a possible means? If so, failure to try that alternative could fail to qualify under (3)(A). Remember, (3)(A) requires that the alternative be impossible – “the land or property cannot be protected or recovered by any other means.” Not that it would be hard to do so, but that it cannot be done.

Even if you fail to meet the conditions of (3)(A), however, you might still satisfy (3) by meeting the conditions of (3)(B), that using other than deadly force would expose you to a substantial risk of deadly force harm.

Certainly, if the thief is armed with a firearm or some other deadly weapon, using a lesser degree of force would almost certainly expose you to a substantial risk of deadly force harm. In such a case, (3)(B) is likely satisfied, and paragraph (3) has been met.

But what if the thief is not armed with a firearm or other deadly weapon? What if it’s the snatch-and-grab of a purse, a shoplifting or the breaking of a window of an unoccupied car, all without the use of weapon of any sort? Would using a non-deadly means of force to protect the property expose the defender to a substantial risk of deadly force harm? Not just a possible risk of deadly force harm, or even a very real risk of deadly force harm, but a substantial risk of deadly force harm?

Maybe. But maybe not. It’s certainly not black-and-white. And once again, we’re sitting precariously on a legal balance beam, with acquittal on one side and a 99-year prison sentence on the other.

Even Worse: The Subjective Risks

On top of all of that – and, really, I hope you can all see by now how using deadly force is risky enough as it is – we also have the additional subjective risk that’s layered upon all those “technicalities.”

What I mean is that, while some of the required conditions might appear largely objective – for example, if the events take place at 3 a.m., it’s certainly “during the nighttime” – much of this legal scheme is largely subjective.

To illustrate, §9.42 uses some variation of the word “reasonable” twice. But don’t forget, §9.42 also incorporates §9.41, which itself uses some variation of that same word an additional three times. So, either directly or by reference, §9.42 uses some variation of the word “reasonable” five times.

Folks, every time you see any reference to the word “reasonable,” it ought to set off alarm bells. Why? Because whether or not your perceptions and conduct were “reasonable” is going to be a judgment call made by other people – police, prosecutors, judges, jurors – any of whom may have a different perception of reasonableness than you do.

And it’s not your definition of “reasonableness” that’s going to control the legal outcome of your use of deadly force in defense of property; it’s going to be their definition of “reasonable.” If they decide, even irrationally or on a whim, that your perceptions or conduct were unreasonable, you fail to meet the conditions of §9.42, your use of deadly force in defense of property was unjustified, and off to prison you go.

Again, it’s the difference between an acquittal and 99-year prison sentence. And, once you’ve acted, the determination of reasonableness is entirely outside of your control.

Bottom Line: Is the Property Worth the Risk?

So, is it true that Texas law allows for the use of deadly force in defense of property?

My answer is: Yes. Dangerously so.

I qualify my answer saying dangerously so, because it’s not a simple blanket license to shoot thieves. There are conditions that must be met – somewhat complicated, detailed, “technicality”-heavy conditions – and the failure to meet any required condition means the loss of the privilege of §9.42, the loss of justification for that use of deadly force in defense of property, and potentially a 99-year prison sentence.

The same goes for the subjectivity of the privilege. Not only is your own view basically irrelevant of whether your perceptions and conduct were reasonable, but the people whose views will control how you spend the rest of your life aren’t even known to you. Indeed, if you’ve ever seen the people who sometimes make up juries, there’s no guarantee that they themselves will be reasonable.

And what if the people we normally expect to be reasonable – the police, prosecutors, judges – turn out to have incentives that are contrary to your own interests, such that a finding of unreasonableness would be advantageous to them? Is the sheriff running for reelection? Does the prosecutor seek higher office? Did the judge blunder in a prior case and now needs to look particularly tough in your case?

Once you’ve used force in defense of property, you have no control over any of those factors. Yet these are factors that separate acquittal from life in prison.

Do you own any property that’s worth the risk, however slight, of 99 years in prison? Really?

Now, I expect that we’ll see plenty of comments along the lines of “Muah property rahts!” or “If the cops won’t stop thievery, the people have to stop it!” and so forth.

In the spirit of full disclosure, I’m extremely sympathetic to those views. I would be very happy to live in a version of America that allowed for greater than deadly force in defense of property, under suitable circumstances. Certainly, shooting a teenager for shoplifting a piece of candy would be outrageous. But what about a thief stealing a tradesman’s work truck, which he requires to feed his family and keep a roof over their heads, and which is only partially covered for theft by his insurance?

I get it.

That said, I don’t have the luxury of teaching the law as I’d like it to be. I can only teach the law as it actually is. And hopefully, I’ve communicated that reality to all of you in this post.

About Andrew F. Branca, Esq.

Andrew Branca, Esq. has been practicing law for over 20 years, and he is recognized worldwide as an expert in self-defense laws of the United States. He has shared his in-depth knowledge and perspectives backed by broad experience, in written contributions to the Wall Street Journal, National Review, Chicago Tribune, Washington Post and many other widely respected periodicals. Andrew has been featured on nationally syndicated broadcast media, in addition to hosting The Best Defense, a television show on the Outdoor Channel, as well as contributing to the National Review Online.

Furthermore, Andrew is a guest instructor and subject matter expert (SME) on self-defense law at the Federal Bureau of Investigation’s National Academy at Quantico and the Sig Sauer Academy. He is a Charter/Life member of the International Defensive Pistol Association (IDPA) Chapter 13; a National Rifle Association (NRA) Life-Benefactor member; an NRA Certified Instructor; and Master-class handgun shooting competitor in several IDPA divisions.

As a certified instructor aligned with the Continuing Legal Education (CLE) system in numerous states throughout the country, Andrew educates lawyers in arguing self-defense cases.

Most recently, he participated in and won a UC Berkeley Law School Debate on “Stand-Your-Ground,” and was a presenter at the NRA Annual Meeting on self-defense law.

LEARN MORE: the LAW OF SELf-defense, LLC

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The Law of Self-Defense LEVEL 1 Core Class is the DVD/online equivalent of the full-day Law of Self Defense LEVEL 1 Class that Andrew Barranca, Esq. has taught live in over 30 states to armed citizens, police, defense lawyers, prosecutors and even judges.

This Law of Self Defense LEVEL 1 Core Class is our most comprehensive course on self-defense law (with the exception of our Instructor Program), with all the legalese translated into plain English, enabling you to make better informed, more confident, and more decisive responses in defense of yourself, your family and your property.

While the Law of Self Defense LEVEL 1 Core Class is comprehensive, it is not state-specific. To provide state-specific details, we complement it with our Level 1 State Supplement Class, designed to provide a state-specific understanding of U.S. use of force law. Those interested in this course, which is available as a DVD and/or via online streaming, should have a prerequisite understanding of Andrew’s LEVEL 1 Core Class materials.

Remember:

You carry a gun so you’re hard to kill.

Know the law so you’re hard to convict.

Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC
Law of Self Defense CONSULT Program

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