TexasCHLforum.com

Posted: **Thu Oct 13, 2011 2:56 pm**

I'm sure the following question has been "asked & answered," but my search didn't turn up anything.

I am a CCW instructor in Louisiana, and am asked this a lot (since our states have reciprocity): Can you use deadly force in Texas to protect property? My stock answer is to "look it up," since I don't teach Texas laws. But I'm asking here because this site has far more credibility than most internet forums.

* When I'm asked the question, it is usually couched in terms of "In Texas, can I shoot a guy who is burglarizing my truck?"

* I have read Texas Section 941, and it appears to generally indicate "yes." (In Louisiana we cannot - we can only use deadly force to protect people).

* I understand, and explain to those who ask, that it's not wise to go and confront a robber, and remind them that "stuff can be replaced."

So, WITH ALL THAT SAID, IN TEXAS, Can you legally shoot someone who is breaking into, or has broken into, your vehicle ?? (Not that it matters, but the guy who recently posed the question to me has had his vehicle broken into several times, most recently losing ~ $19,000 of guns. These were super high grade shotuns, and he's understandibly perturbed.)

Posted: **Thu Oct 13, 2011 3:13 pm**

If you're in the vehicle, you can definitely use deadly force to stop the carjacker.

Posted: **Thu Oct 13, 2011 3:23 pm**

Definitely on an arson or attempted arson (esp MY HOUSE). Crack houses may be burned at will.

The way our class was taught, if there is a "way" to replace the property, then shooting is not an option. Bamsch indicated that either insurance or just having a job might, in the eyes of a jury, be enough to say "it could be replaced, so not justified." This is very sticky to me, and I do not want any of my friends to be "test cases."

Review the last 12 months of Joe Horn's happy existence in Pasadena.

YMMV

seconds

Posted: **Thu Oct 13, 2011 3:24 pm**

First, welcome.

I am a Texas CHL instructor and I tell my classes it is legal in Texas to use deadly force to protect property. But I also tell them that's why I have insurance on my property to protect it. In my mind shooting someone over "stuff" is not worth the headache. Life and limb - - - you shouldn't have done that cause you just aggravated a GOM (Grumpy Old Man).

I hope this answer helps you. Hang around some there are questions about Louisiana law that comes up pretty often.

MoJo

edit: Anyone who has $19,000 worth of guns in their car/truck probably has insurance on them and should not worry about shooting the perp. Too many hassles.

Posted: **Thu Oct 13, 2011 3:25 pm**

$19000 worth of guns? I don't think I would leave a car with that worth of anything in it. It has been discussed many times here, and I'm no lawyer and don't pretend to be one. Yes you can, but be careful of your circumstances as well of your decisions. By the way you are welcome here. don't be a stranger.

Posted: **Thu Oct 13, 2011 3:28 pm**

You have a right to protect your property. You also have the right to defend yourself in front of a jury of your peers should somebody claim that you were excessive in exercising that right.

You might want to weight the cost of replacing the property against the cost of defending yourself in court.

Posted: **Thu Oct 13, 2011 3:29 pm**

ec. 9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A person is justified in using deadly force against another:

(1) if the actor [he] would be justified in using force against the other under Section 9.31; and

(2) [if a reasonable person in the actor's situation would not have retreated; and

[(3)] when and to the degree the actor [he] reasonably believes the deadly force is immediately necessary:

(A) to protect the actor [himself] 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 [requirement imposed by Subsection (a)(2) does not apply to an actor who uses force against a person who is at the time of the use of force committing an offense of unlawful entry in the habitation of the actor].

(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.

Posted: **Thu Oct 13, 2011 3:30 pm**

This is a link to the CHL-related laws in the Texas Penal Code: http://www.txdps.state.tx.us/InternetFo ... CHL-16.pdf

You can give this link to your students that ask. It addresses protection of property on page 61.

For more Texas CHL info (such as conviction rates, proper signage for CHLs, appropriate conduct in traffic stops, etc), you can visit this link: http://www.txdps.state.tx.us/administra ... sindex.htm

Posted: **Thu Oct 13, 2011 3:37 pm**

Here are the statutes on protecting property:

§ 9.41. PROTECTION OF ONE'S OWN PROPERTY. (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.

Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974.
Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1,
1994.

§ 9.42. DEADLY FORCE TO PROTECT PROPERTY. 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.

Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974.
Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1,
1994.

9.42 lays out the definitions pretty clearly. The thing we try to emphasize is, is the property you are trying to protect worth spending a minimum of $15 - $20K in legal fees and your time to be cleared in the shooting. A good example is if someone is breaking into your car, and you are not in imminent danger of serious injury or loss of life, is the GPS unit and damage to your car worth killing someone over?
And, welcome to the forum.

Posted: **Thu Oct 13, 2011 3:38 pm**

seconds wrote:The way our class was taught, if there is a "way" to replace the property, then shooting is not an option. Bamsch indicated that either insurance or just having a job might, in the eyes of a jury, be enough to say "it could be replaced, so not justified."

The last time I looked, 9.42 said nothing about "replaced" so maybe Barnsch should read the law.

Posted: **Thu Oct 13, 2011 3:51 pm**

The last time I looked, 9.42 said nothing about "replaced" so maybe Barnsch should read the law.

(3) he reasonably believes that:
(A) the land or property cannot be protected or
recovered by any other means;

Ok, sorry. "Recovered" not "replaced." I won't split that hair with a jury.

Posted: **Thu Oct 13, 2011 4:00 pm**

If you lost 20 rolls of film (or 5 SD cards) with pictures from a once in a lifetime vacation, most people would agree there's a difference between finding and recovering them, and replacing them by buying new media.

Posted: **Thu Oct 13, 2011 4:13 pm**

Legally I think you can but you have a better chance of defending your actions if the shooting occured at night, as the statute specifically mentions "theft" and "mischief" at night. During the day I think you would have to rely on "burglary".

§ 30.04. BURGLARY OF VEHICLES. (a) A person commits an
offense if, without the effective consent of the owner, he breaks
into or enters a vehicle or any part of a vehicle with intent to
commit any felony or theft.

Trick is there you would have to prove intent. Not worth the fight and not worth my freedom.
That said, I would resort to non-deadly force, i.e. pump some lead into their get-away car.

Posted: **Thu Oct 13, 2011 4:37 pm**

TX0303 wrote:Legally I think you can but you have a better chance of defending your actions if the shooting occured at night, as the statute specifically mentions "theft" and "mischief" at night. During the day I think you would have to rely on "burglary".

§ 30.04. BURGLARY OF VEHICLES. (a) A person commits an
offense if, without the effective consent of the owner, he breaks
into or enters a vehicle or any part of a vehicle with intent to
commit any felony or theft.

Trick is there you would have to prove intent. Not worth the fight and not worth my freedom.
That said, I would resort to non-deadly force, i.e. pump some lead into their get-away car.

Burgulary alone of an unoccupied motor vehicle is only a misdemanor and would not justify use of deadly force. The only thing that changes it to protection of property is if the person is in the act of theft, of either contents or the vehicle itself.

Posted: **Thu Oct 13, 2011 5:07 pm**

Dont' forget also that many cases that may start off as "protection of property" can quickly end up as "protection of persons" after the initial contact/confrontation. The Joe Horn case is the perfect/imperfect example. If Horn had simply shot the two men burglarizing his neighbors home, my personal opinion is he would have lacked legal justification. But his defense - slim as it was - hung on the premise that upon confronting the two men, one of them approached him with a weapon (tire iron or something) and entered Horn's property. That is the point he shot - when his life was in danger. Of course, despite being cleared of criminal wrongdoing, Horn's life was irrevocably turned upside down because of his actions - so I'm not recommending anyone do the same.

Whether to confront someone who is stealing your property is a personal decision. Yelling at the person to stop/leave etc is not use of deadly force. Displaying a weapon while doing so? Grayer area. I wouldn't recommend anyone walk outside their house and just shoot someone attempting to steal their car, but the statutes don't necessarily say you can't do just that. Up to a jury to decide. Question is whether the property being stolen is worth the hassle of a judge/jury/lawyers/legal bills etc. I doubt a pure "defense of property" justification with no extenuating circumstances or threat to life will be accepted by LEO and/or prosecutors without at least a grand jury weighing in.

So the real question is do you want to confront someone stealing your property, or just let it go? Again, personal decision. One way to think of it is this - would you confront the criminal if you were NOT armed? If not, then perhaps you shouldn't be confronting them at all.

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