A man’s home is his castle, and nowhere is that more true than in Texas. Terms like “Castle Doctrine” and “Stand Your Ground” get tossed around in the media frequently, but what do these terms actually mean in the Lone Star State? Do you have a right to pull a shotgun on someone who gets past your fence? What if you pull into your driveway to see someone running off with a jewelry box? This article covers what is broadly described as the “Castle Doctrine” in Texas, including when you can use force, when you can use deadly force, and whether you have a duty to retreat.
Perhaps the easiest way to understand a key provision of the Castle Doctrine is to remember that a King or Queen has no duty to retreat inside their own castle, and if someone unlawfully forces their way into the castle, the King or Queen can use any force available to resist that attack. Texas Penal Code 9.31 and 9.32 together form what is often called the “Castle Doctrine” in Texas. Penal Code 9.31 discusses the use of non-deadly force and 9.32 discusses the use of deadly force. Penal Code 9.41 and 9.42 are also worth looking at because they describe when force and deadly force can be used to protect property. (All these statutes are provided in the section below.) While Texas gives broad rights to individuals to protect themselves against others, always remember they boil down to a question of what was reasonable. Reasonability and the immediate need to use force are two lynchpins of the Castle Doctrine in Texas.
Under the Castle Doctrine, in certain circumstances, you are presumed to have acted reasonably in defending your “castle.” This could be your home, vehicle or place of employment.
Penal Code 9.32 sets out that person can use deadly force when he reasonably believes it is immediately necessary to:
Generally, a person may use force, but not deadly force, to protect property. There are, however, some important exceptions. Under Penal Code 9.42, deadly force may be used to protect land or property when a person reasonably believes that deadly force is immediately necessary to:
However, the person must also be able to show that he reasonably believed that the land or property could not be protected or recovered by any other means or that the use of non-deadly force would expose him or another to a substantial risk of death or serious bodily injury.
The Castle Doctrine relieves a person of the duty to retreat when he is justified in using deadly force against another if:
Texas Penal Code 9.32(d) further provides that in determining whether or not the actor’s belief was reasonable, the trier of fact may not consider whether the actor failed to retreat. In other words, a person generally does not have to retreat on their property and their decision not to retreat cannot be used as a fact against them in determining whether their belief that deadly force was needed was a reasonable belief or not.
The question of reasonability will always be one for the fact-finder, whether that is a grand jury, a petit jury, or a judge. However, there are instances where reasonability is presumed. The Castle Doctrine in Texas provides a presumption of using force against another person who is:
Yes, the Castle Doctrine extends to your place of employment and your business.
Yes. The Castle Doctrine extends to any vehicle routinely used for transportation, including planes, trucks, cars, golf carts, and ATVs. Vehicles are considered your property and covered by the law if you face an intruder.
If a property owner provokes an individual and that leads to violence or if the property owner is taking part in any criminal activity, the owner is not protected.
A person that is engaged in criminal activity will not be entitled to a castle doctrine defense
Texas law provides that a verbal threat alone is not sufficient to justify use deadly force. So a person saying, “I will kill you” may not be enough to use deadly force, but a person who says, “I will kill you” while holding a knife goes beyond mere words; they have the ability to carry out their threat.
Notice the law authorizes the use of deadly force only when it is “immediately necessary.” If someone says, “I will come back and kill you tomorrow,” it will be difficult to show the use of deadly force at the time of the statement was immediately necessary.
Yes. Under Penal Code 9.04, you can draw a weapon and threaten a person if you are justified in using force. Note the requirement is not that you had to be justified in using deadly force. The law also requires that when you pull a weapon and make a threat to protect property or a person, you do so with the limited purpose of causing fear in the intruder that you will use deadly force if necessary.
While trespassing on property other than your home alone will not give rise to the lawful use of deadly force, there is a presumption that deadly force is immediately necessary when someone has unlawfully entered or is attempting to enter by using force. Additionally, deadly force may be used against an intruder at night who you reasonably believe will imminently commit theft or criminal mischief.
Texas Penal Code 9.41 permits the use of force to protect property. It does not permit the use of deadly force to merely protect property under most circumstances. This changes when someone attempts to forcefully enter your house or enters your house by force. Your house includes your porch and attached garages, but does not include detached garages. It also changes when you can meet the elements of Penal Code 9.42.
Texas Penal Code Section 9.42 requires that all three of the following circumstances exist in order for you be justified in employing deadly force to protect property.
1. You must be justified in using force;
2. Must only be to the degree you reasonably believe deadly force is immediately necessary to prevent:
a. the imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; orb. Someone fleeing from those things; or
3. To the degree that you reasonably believe that
a. The land or property cannot be protected or recovered by any other means, orb. Using a lesser force would expose you or someone else to the substantial risk of death or serious bodily injury.
Misconception One: “Standing Your Ground” means you can use deadly force and you don’t have to back down during an argument.
Generally, you can use force “to the degree” a person reasonably believes such force is “immediately necessary” to protect against another person’s use or attempted use of unlawful force. In other words, if someone is about to clock you, you are allowed to defend yourself with your hands…but don’t expect the law to protect you if you bring a gun to that fist fight. Generally speaking, you can defend yourself with the same level of force that is being used against you. Using deadly force, however, has additional requirements. You would have to show that you used to force to protect against the other person’s use of unlawful deadly force or to prevent an aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.
A person can only “stand their ground” if they have a right to be present at the location, they did not provoke the person against whom the force is being used, and were not engaged in criminal activity at the time they are using the force. Threatening to kill someone while you display a deadly weapon is generally going to be the second-degree felony offense of Aggravated Assault with a Deadly Weapon.
Misconception Two: You can Shoot Someone for a Getting in Your Face
Verbal provocation alone is never justification for the use of force. It doesn’t matter what the other person is saying. If you respond with anything from a fist to a firearm, you are going to be charged with a criminal offense. That includes a person getting in your face with their finger waving. That includes an unarmed person saying they are going to kill you.
Misconception Three: You Can Set Conditions that Allow You to Shoot
If a gunman says, “If you come within three-foot of me, I’m going to kill you” and then the other party violates the condition, it still does not give the gunman the legal authority to shoot.
Penal Code 9.31:
(a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force. The actor’s belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:
(1) knew or had reason to believe that the person against whom the force was used:
(A) 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;
(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor’s habitation, vehicle, or place of business or employment; or(C) was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;
(2) did not provoke the person against whom the force was used; and
(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.
(b) The use of force against another is not justified:
(1) in response to verbal provocation alone;
(2) to resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer’s presence and at his direction, even though the arrest or search is unlawful, unless the resistance is justified under Subsection (c);
(3) if the actor consented to the exact force used or attempted by the other;
(4) if the actor provoked the other’s use or attempted use of unlawful force, unless:
(A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and
(B) the other nevertheless continues or attempts to use unlawful force against the actor; or(5) if the actor sought an explanation from or discussion with the other person concerning the actor’s differences with the other person while the actor was:
(5) if the actor sought an explanation from or discussion with the other person concerning the actor’s differences with the other person while the actor was:
(A) carrying a weapon in violation of Section 46.02; or
(B) possessing or transporting a weapon in violation of Section 46.05.
(c) The use of force to resist an arrest or search is justified:
(1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and
(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer’s (or other person’s) use or attempted use of greater force than necessary.
(d) The use of deadly force is not justified under this subchapter except as provided in Sections 9.32, 9.33, and 9.34.
(e) A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described by this section.
(f) For purposes of Subsection (a), in determining whether an actor described by Subsection (e) reasonably believed that the use of force was necessary, a finder of fact may not consider whether the actor failed to retreat.
Penal Code 9.32
(a) A person is justified in using deadly force against another:
(1) if the actor would be justified in using force against the other under Section 9.31; and
(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:
(A) to protect the actor against the other’s use or attempted use of unlawful deadly force; or
(B) to prevent the other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.
(b) The actor’s belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:
(1) knew or had reason to believe that the person against whom the deadly force was used:
(A) 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;
(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor’s habitation, vehicle, or place of business or employment; or
(C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);
(2) did not provoke the person against whom the force was used; and
(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.
(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.
(d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.
Penal Code 9.41
(a) A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other’s trespass on the land or unlawful interference with the property.
(b) A person unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and:
(1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or
(2) the other accomplished the dispossession by using force, threat, or fraud against the actor.
A person is justified in using deadly force against another to protect land or tangible, movable property:
(1) if he would be justified in using force against the other under Section 9.41; and
(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
(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.
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If you or a loved one are facing criminal charges after using force to protect yourself, family, home or property, you need an experienced attorney by your side. Call us today at 817-203-2220 for a complimentary strategy session. Our team of former prosecutors and Board Certified Criminal Lawyers are here to help. During this call we will:
