Wednesday, September 05, 2007

Reader question

Gentle Reader A Soldiers Girl asks:

Hey LD,

Do you have a post covering the general statutes on defending your house, in Texas?

We've had several break-ins in the neighborhood and we're simply looking to understand what we are and are not allowed to do if someone breaks in while we are home.

Always a Good Thing to know.

Use of Force and Deadly Force is covered in the Texas Penal Code, specifically Chapter Nine of that Code.

In that Chapter, pay particular attention to 9.32 -- which states that Texas does not require a homeowner to retreat inside of his own habitation -- and 9.42, which justifies the use of Deadly Force to protect property.

That being said -- and I cannot stress this strongly enough -- check with your local District Attorney to see how he (or she) regards Chapter 9.

Unfortunately, in some parts of Texas we have District Attorneys who have announced their intention of prosecuting folks for actions which the Texas Legislature has already sanctioned.

As always, this advice is worth exactly what you paid for it.

LawDog

ps: Be sure to read Senate Bill 378, signed into law by the Texas Governor and effective as of Sept 1, 2007. Don't know how I forgot about that one, but thanks to William the Coroner for reminding me.

LawDog

13 comments:

William the Coroner said...

Talk to an attorney. You may not get prosecuted. You WILL be sued, either by the guy who didn't die or his heirs. These can be stinkers. Talk to an attorney FIRST.

And think about liability insurance. Docs have to live with this every day.

LawDog said...

As of Sept 1, if a Grand Jury declines to indict a person for a justified use of force or deadly force, then that person is immune from civil liability for personal injury or death connected to that particular use of force.

Senate Bill 378, signed into law by Rick Perry.

Mr. Fixit said...

Right Lawdog,one of the best things to happen this sessioncpbhekgv

Justin said...

I'm wondering what your take on this episode is. Long story short dude banging on the door of his neighbor got popped in the head, through the door, at 4am.

The local Brady Bunch contact said that this is totally legal under the new Castle Doctrine law the went into effect Sept. 1. The actual quote is in the article. I find that hard to believe. I suspect this bloke will be brought in front of a grand jury (at least), but I'm not really familiar with the new law down there in Texas.

Rorschach said...

One other point is that the rules in Texas change "After Dark" which is defined not in Chapter Nine of the penal code but is instead defined by the motor vehicle code as 30 minutes after sundown or 30 minutes before sun up. During daylight, you may not use lethal force in the protection of property, but you can after dark. You may at all times and in all places you have a legal right to be use deadly force to protect your life or the life of another. You do not have to retreat before using deadly force. (but as Lawdog states, some DA's have funny ideas about the need to follow black letter law. Here in Harris County, our DA, Chuck Rosenthal, has instructed LEO's to disregard all legislative clarifications to the "traveling" statute regarding weapons in vehicles by non-CHL holders for instance.) The lives of animals by the way would be considered under the law as property.

West, By God said...

Rorschach - that "lethal defense at night, but not in the day" bit is straight out of the Bible (Exodus 22:2).

Florida recently added an interesting part to their existing castle doctrine law: at any time, if someone has broken in, or is attempting to break in to your home, you can assume they intend to do you harm, and are presumed justified in using deadly force. Of course, this hasn't been tested in court... I'm not sure if that's because DAs haven't tried to prosecute anyone, or it just hasn't really happened yet. Regardless, I think it is a pretty good idea.

JR said...

An excerpt of current Texas law:

"(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."

Anonymous said...

I have a real problem with the notion that I have to wait until the critter gets into my house before I take action. Around here the old myth that shooting the critter, then dragging him into the house will protect you from prosecution is definitely a reality. But then, this is pretty much Hooterville, only the city administrator has goats instead of a pig....
LawMom

phlegmfatale said...

about the unfortunate event in Dallas Justin mentioned - the guy banging like a lunatic on the neighbors' door at 4am - the girlfriend said he would never have harmed her. Well, then what was she doing locking him out of the house, for goodness' sake?
In another article, the girlfriend said they both were suffering the effects of a stop-smoking drug they had been taking together for a week, and which had given Albrecht "hallucinatory dreams." Well, if that's the case, I think clearly the lack of nicotine, and not the gun owner, was to blame for his rampage and subsequent death.

As for shooting through the door - I would've waited til he got inside, but I woulda kilt him, too, without batting an eye. Sad story proving yet again that people shouldn't behave like lunatics.

KCSteve said...

And in a further clarification of the incident, he was 'banging on the door' with his foot - i.e., doing his best to kick it in. Not sure if I'd have waited for him to succeed either.

It's also my understanding that local law enforcement has already ruled this a 'good shoot' and the only thing the gentleman faces is a lifetime of bad dreams due to the situation forced upon him.

'folfrk'? Sounds like something someone would say if someone started to kick their door in during dinner but it's just my 'word verification'

jon said...

Personally, shooting through closed doors is bad business unless bullets are coming from that direction. I'm sure there are those that will try to break through doors, although I don't see how it's a great leap in logic to know that a full coke can will break through a window, so why try the door?

Anyway, if push came to shove, I'd rather have a clear target so the projectile hits the intended point. I'm not sure, though, if anger or fear would determine that point. One emotion would result in almost certain death. The other may result in pain and suffering.

Justin said...

Sorry if my post came off like a drive-by comment. I figured it was related to the topic at hand, and I consider LawDog's opinions on such matters quite valuable.

And LawMom, as far as this goes: I have a real problem with the notion that I have to wait until the critter gets into my house before I take action. I agree with you.

A Soldier's Girl said...

Thank you very much for the information.

I appreciate you taking the time to answer my question. :-)