Danger! Texas Law on Deadly Force Defense of Property
Written by Guest Contributor,
in Section Latest Articles
ATTORNEY ANDREW F. BRANCA
LAW OF SELF DEFENSE LLC
Attorney Andrew Branca here from Law of Self Defense, where we help you make better informed, more confident, and more decisive decisions in defense of yourself, your family, and your property.
There have been a number of use-of-force cases in the news lately involving people who used deadly force in defense of mere personal property. These news stories include the case of a Nebraska woman who last month shot a shoplifter, a Minnesota man who earlier this year shot a car thief, and a Memphis man who last week used a sawed-off shotgun to shoot a man stealing a chainsaw.
In 49 of our states, the use of deadly force to defend mere personal property in the absence of an imminent threat to 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 to news reports of these cases there will be one or more comment 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!
It’s pretty widely known in the gun community that Texas is the only one 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) to distinguish it 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, where 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 for highly defensible property. So, LDP includes such things as your cell phone, your wallet, merchandise in a store, even unoccupied motor vehicles. (An occupied motor vehicle is treated as HDP in many, but not all, states.)
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 generally, 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 purposes of this post, we’ve gone as far as we’ll be going with our 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, however, there is no threat to persons, then in 49 states a threat to mere personal property alone will never justify 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.
As noted above, Texas is the exception to this generalized rule, 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 the protection of that statute.
Even worse, 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 defensive 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
The Texas statutory provision that allows for the use of deadly defensive 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 straight-forward statute in terms of construction (how 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 it’s 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 are 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 conditions are set out in the immediately preceding statute, §9.41. Protection of One’s Own Property.
… (1) if he would be justified in using force against the other under §9.41; and …
I expect that of all the people talking on the internet about the right in Texas to kill property thieves, maybe 1% of ever bothered actually reading 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 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 defensive force in defense of some other person’s property under §9.42.
Did you know that Texas law only ever allows the use of deadly force in defense of property that’s owned only by the defender, and has no provision for the use of deadly defensive force in defense of some other person’s property? 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 whatever?
Because most people I ask do not know this “technicality” of Texas defense of property law, and 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, which you can do here: §9.41. Protection of One’s Own Property. And §9.41 does contain 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.
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 to trigger §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. So, 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 of §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, the conditions of the requirements is 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 keeps 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.
Note first 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.
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 qualifies to trigger (2)(B). Might the thief have dropped the property without you being aware that they’ve done so? A
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.” Well, what’s 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?
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 defensive 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. If the thief is fleeing on foot, instead of simply shooting him might you have instead not 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 (say) thief is armed with a firearm, or perhaps 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 a snatch-and-grab of a purse, or 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 precariously balanced 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 see that all of that is enough risk as it is—we also have the additional subjective risk that’s layered upon all those “technicalities.”
What I mean by that is while some of the required conditions might appear largely objective—if the events take place at 3 am, it’s certainly “during the nighttime,” for example—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 the word “reasonable” 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, or were not, “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 decided, even irrationally, even on a whim, that your perceptions or conduct were unreasonable, well, 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.
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 for the subjectiveness of the privilege. Not only is your own view of whether your perceptions and conduct was reasonable controlling, the people whose views will control how yo spend the rest of your life aren’t even known to you—indeed, if you’ve ever seen any of 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, where a finding of unreasonableness would be advantageous to them? Is the sheriff running for re-election? 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, and yet they 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!” and “if the cops won’t stop thievery, the people have to stop it!” and so forth.
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 the work truck of a tradesman, the truck he uses to feed his family and keep a roof over their heads, the truck that his insurance only covers a portion of?
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.
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You carry a gun so you’re hard to kill.
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Attorney Andrew F. Branca