Clients often inquire about state law relating to the armed defense of their Texas homes. The following article provides information concerning Texas statutory law on this subject, as well as a discussion of common misconceptions.
I. WHETHER TEXAS REQUIRES DEFENDERS TO RETREAT BEFORE USING DEADLY FORCE INSIDE THE CONFINES OF THEIR HOME
Texas is a “Stand Your Ground” state. As long as a Defender “has a right to be present at the location where the [sic] deadly force is used,”* and the use of deadly force is otherwise lawful, no distinction is make in Texas state law between one’s “home” or any other location. The relevant statute provides:
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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.
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Texas Penal Code § 9.32(c) (emphasis added).
Furthermore, “(f)or 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.
Texas Penal Code § 9.32(d) (emphasis added).
Texas Penal Code § 9.32(d) (emphasis added).
* As of this writing, no reported appellate case has been found in which the prosecution has argued that a person is not entitled to the protection of section 9.32(c) if that person is not lawfully present in the United States.
II. WHETHER TEXAS DEFINES THE TERMS “DWELLING,” “HABITATION,” AND “ABODE” BROADLY OR NARROWLY
Texas statutory law explicitly allows for the use of force, including deadly force, to defend against certain violent crimes committed against a Defender or third-parties, where the crime is committed in the Defender’s “occupied habitation, vehicle, or place of business or employment.” Arguably, the protections contained in the statute include what is referred to in legal parlance as the “curtilage” of the property (a home’s porch, steps, garage, or yard), as the statute specifically refers to the use of deadly force to protect against someone “attempting to enter unlawfully and with force.” One must, by definition, be physically present in the curtilage of a property in order to “attempt to enter” the property.
Likewise, the statute’s explicit protection of “occupied habitation” and “vehicle” would seem to protect non-traditional “homes,” such as automobiles, tents, and the like.
Likewise, the statute’s explicit protection of “occupied habitation” and “vehicle” would seem to protect non-traditional “homes,” such as automobiles, tents, and the like.
The Texas statute relating to the use of (non-lethal) force states:
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(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: (A) carrying a weapon in violation of Section 46.02; or (B) possessing or transporting a weapon in violation of Section 46.05. ¶ ¶ (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. |
Texas Penal Code § 9.31 (emphasis added).
The Texas statute relating to the use of deadly force builds on section 9.31 (use of non-lethal force), stating:
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(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. |
Texas Penal Code § 9.32 (emphasis added).
III. COMMON – BUT MISTAKEN – BELIEFS ABOUT HOME DEFENSE IN TEXAS
A. Misconception:
Texans should feel free to take advantage of Texas’ permissive (as compared with many other states’) laws relating to the use of deadly force.
Texans should feel free to take advantage of Texas’ permissive (as compared with many other states’) laws relating to the use of deadly force.
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Attorney Opinion:
Regardless of how “permissive” a state’s use of deadly force laws may appear, the best course of action is to always avoid the use of deadly force if such avoidance can be accomplished without unreasonably exposing the Defender or third-parties to life-threatening harm. “Permissive” use of force laws were enacted not to encourage avoidable uses of deadly force but, rather, to protect an individual from criminal liability if the individual finds himself in a situation in which the use of deadly force cannot reasonably and safely be avoided. |
B. Misconception:
Criminal defense attorneys understand how to best handle a self-defense case.
Criminal defense attorneys understand how to best handle a self-defense case.
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Attorney Opinion:
See our recent article: How NOT to Hire a Criminal Defense Attorney for a Self-Defense Case |
C. Misconception:
The Defender believes he “didn’t do anything wrong” and therefore will not be charged with a crime or civilly sued for damages or, similarly, the judge/jury will understand that the Defender acted in self-defense and I will not be convicted.
The Defender believes he “didn’t do anything wrong” and therefore will not be charged with a crime or civilly sued for damages or, similarly, the judge/jury will understand that the Defender acted in self-defense and I will not be convicted.
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Attorney Opinion:
There are never any guarantees when a case goes to trial. That’s a primary reason why an overwhelming majority of cases – both criminal and civil – settle before trial. |
This article also appeared in a January 2025 newsletter published by the Armed Citizens Legal Defense Network
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DISCLAIMER
The information contained in this publication is provided by Lapin Law Group, P.C., for informational purposes only and, shall not constitute legal advice or create an attorney-client relationship. The laws and interpretation of laws discussed herein may not accurately reflect the law in the reader’s jurisdiction. Do not rely on the information contained in this publication for any purpose. If you have a specific legal question, please consult with an attorney in your jurisdiction who is competent to assist you.
Lapin Law Group, with its principal office in the Dallas-Fort Worth Metroplex, serves all 254 Texas counties.
Lapin Law Group, with its principal office in the Dallas-Fort Worth Metroplex, serves all 254 Texas counties.
