Updated September 1, 2023
Sadly, violence and destruction like those seen in the 2020 Summer of Love have marred otherwise peaceful protests across the United States and in our great State of Texas. The founding of our country was based on the principle that we have the right to publicly assemble and voice our grievances in the hopes of effectuating positive change. Sadly, the news over the past few days has shown peaceful protests can quickly become extremely dangerous, putting everybody at risk of becoming victims of violent crimes. People have been dragged from their vehicles, assaulted, and even killed. Businesses have been looted and burned. Be sure you understand the laws of self-defense and the defense of your property before you find yourself in a potentially dangerous situation. It is vital to know the law so you can keep yourself, your loved ones, and your property safe.
Defense of Property Laws
Texas law allows for the use of force for the immediate protection of property against all unlawful trespasses, thefts, and other interferences. Under certain limited circumstances, the law also justifies the use of deadly force to protect property. Texas Penal Code § 9.41 states that a person may use force, but not deadly force, when they reasonably believe it is immediately necessary to prevent or terminate another’s trespass or unlawful interference with the property. This includes theft and vandalism (legally referred to as criminal mischief).
When a person’s movable property has been stolen, the use of force to recover that property is only justified immediately after it was stolen or in fresh pursuit of the property. The use of force hours, days, or weeks later is not justified. In such a situation, you should call the police and let them make a lawful recovery of your property.
Justified use of deadly force to protect property is more complicated and specifically limited. Texas Penal Code § 9.42 states that deadly force is only justified to protect or recover property. However, the following elements must be present: (1) the use of force is justified under section 9.41, and (2) there is a reasonable belief that deadly force is immediately necessary to prevent or terminate the crimes of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime. This law also allows deadly force to prevent an individual from fleeing with the stolen property, but with the important caveat that the individual reasonably believes there are no other means available to protect or recover the property or that to use less than deadly force to protect or recover the property would expose them to a substantial risk of death or serious bodily injury. It is important to remember that this defense is rarely successful in trial, and the best advice is to get a description of the thief and call the police instead.
In addition to the justifications for the defense of property stated above, Texas Penal Code §§ 9.31 and 9.32 give people who use force or deadly force in defense of themselves or others the legal presumption that their use of force or deadly force is reasonable if they “knew or had reason to believe that the person against whom the force [or deadly force] was used: unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment.” This powerful legal protection will be discussed further below for each of the three distinct locations mentioned: occupied habitation, vehicle, and place of business.
One of the most fundamental self-defense principles in Texas is defending your home. Commonly referred to as the “Castle Doctrine,” Texas Penal Code §§ 9.31 and 9.32 allow an occupant of a habitation to use deadly force against a perpetrator who is unlawfully and forcefully entering or attempting to enter their home. Inhabitants do not have to wait until the perpetrator is already inside their habitation, and it is not necessary that the perpetrator’s entire body be inside the home. The breach of a window or a door by a club, crowbar, or other weapon held by the perpetrator is still considered to be forcefully entering. This means you can defend your family against a home invasion as long as the perpetrator is imminently breaking in, and you do not have to wait until the perpetrators have fully breached your castle walls.
Texas law will not generally allow the use of deadly force to defend an unoccupied vehicle. But if you are in your car and have a reasonable fear of being dragged out of a car by a perpetrator, your life (not just your property) is in danger. The law defines this crime as a robbery or aggravated robbery, but it is more commonly referred to as a carjacking. Because this crime involves the threat of unlawful force, bodily injury, or death to the victim, or use of a deadly weapon, it puts the victim in imminent physical danger. As the victim or would-be victim of a carjacking, your belief that deadly force is immediately necessary to stop anyone who is entering or attempting to enter or removing or attempting to remove an occupant, the use of deadly force in response will be legally presumed to be reasonable.
Place of Business
In Texas, a person has the same right to defend their business property with deadly force as they do to defend themselves or others during a home invasion or a carjacking. It is important to note that a criminal who is attempting to unlawfully enter an occupied business is considered to be the same as a criminal who has actually entered the business, and the use of deadly force in response is legally presumed to be reasonable.
Many times, business owners cannot wait until perpetrators breach their doorways because it might be too late once they get inside. A business owner who is outside of their building is not required by law to retreat inside of it before being justified in using force or deadly force. Further, Texas Penal Code § 9.04 states that during a use of force situation, which has not yet become a use of deadly force situation, a person can display a weapon for the limited purpose of creating apprehension in others that they will use deadly force if necessary. Additionally, any attack on a business owner standing outside their building would be reasonably perceived to be an attack on the person rather than their property. Therefore, if a business owner is outside of their building with a firearm and they are confronted by would-be looters—particularly those armed with deadly weapons—the business owner can lawfully present their firearm as a use of force and, if necessary, use them in defense of themselves as a use of deadly force.
Human life and our rights are something we all cherish. A jury is almost always going to place value on human life over property. Thus, exercise caution and only use deadly force as a last resort.
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.