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Warning Shots & Trespassers in Texas: What is the Law?

"If there's ever a problem here, just walk out on the balcony, here, walk out, put that double barrel shotgun and just fire two blasts outside the house." - Joe Biden, Former Vice President

What does Texas law say about the use of warning shots to stop a mere trespasser?

First, what does it mean to be a "mere trespasser?" This means that the person trespassing on your land has not committed any other criminal offense and has not attempted forceful and unlawful entry into your home or another structure on your property. The individual is simply on your land without authorization.

What's the best course of action? Let's start with what you absolutely shouldn't do: don't go outside and fire a warning shot into the air. If you do, you could be arrested for a serious felony. While you won't find the word "warning shot" in the Texas Penal Code, Texas courts are likely to consider such a shot as a use of deadly force.

Texas law defines deadly force as force capable of causing death or serious bodily injury. There is a very strong argument that all firearm discharges, including warning shots, constitute deadly force because of the inherit design of firearms. Additionally, firearms by definition are a deadly weapon.

Regardless of where the barrel is pointed, when it comes to a warning shot, we have seen many people arrested for the felony offense of aggravated assault with a deadly weapon. Additionally, at trial it is an uphill battle to obtain justification as a defense because the law does not allow the use of deadly force against a mere trespasser.

What should you do?

Now, what is the best course of action in our example? A good start would be to call 911 to report the trespass. Additionally, under certain circumstances, Texas law allows for the use of force—not deadly force—if the trespasser does not depart immediately after being told to leave, so long as the force was reasonable and immediately necessary under the circumstances.

Remember, preparation for any scenario is important as a responsible gun owner. In this situation against a mere trespasser, leave the firearm holstered and reach for the telephone first.

Author: Richard D. Hayes, II

DISCLAIMER: The information on this website does not contain legal advice or create an attorney-client relationship. Every case is different, and this material is not a substitute for, and does not replace the advice or representation of, a licensed attorney.

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Walker & Taylor, PLLC is located in Houston, TX and serves clients in and around Harris, Galveston, Fort Bend, Montgomery, Liberty, Brazoria, and Chambers Counties.

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