Texas Penal Code 9.22 - Necessity

[CigarStix]

Can someone please explain this to me? I'm a new CHL Instructor, working on my presentation, and I'm trying to put this in simple terms. Thanks!

[Greybeard]

A (rare) defense to prosecution. In some states, also known as "Law of Competing Harms". Summarized by "It is OK to break the law if following the law would cause more human injury than breaking it."

[Eric Lamberson]

Hope this helps. I am not an attorney and I am not offering any legal advice.

Conduct is justified if:

(1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;

(2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and

(3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.

What this means is that there are times when someone is justified in breaking the law because the harm they are causing (e.g. intentionally displaying a pistol) is less harmful than the harm they avoid (e.g. an innocent being threatened with unlawful force). I typically use the intentional display example to explain the concept. Another example: It is illegal to break into a house; however, if the house is on fire and the reason you broke into the house was to rescue a young child, your conduct would be justified even though you technically broke the law.

Some legal examples:

The legal defense of necessity justifies conduct that would otherwise be criminal. To raise necessity as a defense, the accused must admit committing the offense; then, he or she “offers necessity as a justification which weighs against imposing a criminal punishment for the act or acts which violated the statute.” See Young v.State, 991 S.W.2d 835, 838 (Tex. Crim. App.), cert. denied, 120 S.Ct. 618(1999).

“Imminent” means something that is impending, not pending; something that is on the point of happening, not about to happen. An “imminent harm” occurs when there is an emergency situation and it is “immediately necessary” to avoid that harm, when a split-second decision is required without time to consider the law. Smith v. State, 874 S.W.2d 269, 272–23 (Tex. App.—Houston [14th Dist.] 1994, pet. ref’d).

In Vasquez, the defendant was charged with possession of a firearm by a felon. The defendant admitted that he had possessed a firearm and testified ex-members of a prison gang kidnapped him and held him hostage. He said he was able to escape by grabbing a gun when the man guarding him was distracted. Afterwards he was seen walking through a parking lot with the gun and was subsequently arrested. The Texas Court of Criminal Appeals held under these facts the defendant's testimony raised the defense of necessity. The defendant admitted that he committed the offense, and offered necessity as a justification-possessing the weapon was the only way he was able to escape from his captors. Vasquez v. State, 830 S.W.2d 948 (Tex.Crim.App.1992)

[CigarStix]

Thank you to all who have responded to my inquiry!!

Very helpful.