CHAPTER 9. JUSTIFICATION EXCLUDING CRIMINAL RESPONSIBILITY - Texas Statutes

PENAL CODE

TITLE 2. GENERAL PRINCIPLES OF CRIMINAL RESPONSIBILITY

CHAPTER 9. JUSTIFICATION EXCLUDING CRIMINAL RESPONSIBILITY

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 9.01. DEFINITIONS. In this chapter:

(1) "Custody" has the meaning assigned by Section 38.01.

(2) "Escape" has the meaning assigned by Section 38.01.

(3) "Deadly force" means force that is intended or known by the

actor to cause, or in the manner of its use or intended use is

capable of causing, death or serious bodily injury.

(4) "Habitation" has the meaning assigned by Section 30.01.

(5) "Vehicle" has the meaning assigned by Section 30.01.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.

Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept.

1, 1994; Acts 1997, 75th Leg., ch. 293, Sec. 1, eff. Sept. 1,

1997.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

1, Sec. 1, eff. September 1, 2007.

Sec. 9.02. JUSTIFICATION AS A DEFENSE. It is a defense to

prosecution that the conduct in question is justified under this

chapter.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.

Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept.

1, 1994.

Sec. 9.03. CONFINEMENT AS JUSTIFIABLE FORCE. Confinement is

justified when force is justified by this chapter if the actor

takes reasonable measures to terminate the confinement as soon as

he knows he safely can unless the person confined has been

arrested for an offense.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.

Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept.

1, 1994.

Sec. 9.04. THREATS AS JUSTIFIABLE FORCE. The threat of force is

justified when the use of force is justified by this chapter. For

purposes of this section, a threat to cause death or serious

bodily injury by the production of a weapon or otherwise, as long

as the actor's purpose is limited to creating an apprehension

that he will use deadly force if necessary, does not constitute

the use of deadly force.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.

Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept.

1, 1994.

Sec. 9.05. RECKLESS INJURY OF INNOCENT THIRD PERSON. Even

though an actor is justified under this chapter in threatening or

using force or deadly force against another, if in doing so he

also recklessly injures or kills an innocent third person, the

justification afforded by this chapter is unavailable in a

prosecution for the reckless injury or killing of the innocent

third person.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.

Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept.

1, 1994.

Sec. 9.06. CIVIL REMEDIES UNAFFECTED. The fact that conduct is

justified under this chapter does not abolish or impair any

remedy for the conduct that is available in a civil suit.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.

Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept.

1, 1994.

SUBCHAPTER B. JUSTIFICATION GENERALLY

Sec. 9.21. PUBLIC DUTY. (a) Except as qualified by Subsections

(b) and (c), conduct is justified if the actor reasonably

believes the conduct is required or authorized by law, by the

judgment or order of a competent court or other governmental

tribunal, or in the execution of legal process.

(b) The other sections of this chapter control when force is

used against a person to protect persons (Subchapter C), to

protect property (Subchapter D), for law enforcement (Subchapter

E), or by virtue of a special relationship (Subchapter F).

(c) The use of deadly force is not justified under this section

unless the actor reasonably believes the deadly force is

specifically required by statute or unless it occurs in the

lawful conduct of war. If deadly force is so justified, there is

no duty to retreat before using it.

(d) The justification afforded by this section is available if

the actor reasonably believes:

(1) the court or governmental tribunal has jurisdiction or the

process is lawful, even though the court or governmental tribunal

lacks jurisdiction or the process is unlawful; or

(2) his conduct is required or authorized to assist a public

servant in the performance of his official duty, even though the

servant exceeds his lawful authority.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.

Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept.

1, 1994.

Sec. 9.22. NECESSITY. 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.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.

Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept.

1, 1994.

SUBCHAPTER C. PROTECTION OF PERSONS

Sec. 9.31. SELF-DEFENSE. (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.

(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.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.

Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept.

1, 1994; Acts 1995, 74th Leg., ch. 190, Sec. 1, eff. Sept. 1,

1995.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

1, Sec. 2, eff. September 1, 2007.

Sec. 9.32. DEADLY FORCE IN DEFENSE OF PERSON. (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.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.

Amended by Acts 1983, 68th Leg., p. 5316, ch. 977, Sec. 5, eff.

Sept. 1, 1983; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff.

Sept. 1, 1994; Acts 1995, 74th Leg., ch. 235, Sec. 1, eff. Sept.

1, 1995.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

1, Sec. 3, eff. September 1, 2007.

Sec. 9.33. DEFENSE OF THIRD PERSON. A person is justified in

using force or deadly force against another to protect a third

person if:

(1) under the circumstances as the actor reasonably believes

them to be, the actor would be justified under Section 9.31 or

9.32 in using force or deadly force to protect himself against

the unlawful force or unlawful deadly force he reasonably

believes to be threatening the third person he seeks to protect;

and

(2) the actor reasonably believes that his intervention is

immediately necessary to protect the third person.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.

Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept.

1, 1994.

Sec. 9.34. PROTECTION OF LIFE OR HEALTH. (a) A person is

justified in using force, but not deadly force, against another

when and to the degree he reasonably believes the force is

immediately necessary to prevent the other from committing

suicide or inflicting serious bodily injury to himself.

(b) A person is justified in using both force and deadly force

against another when and to the degree he reasonably believes the

force or deadly force is immediately necessary to preserve the

other's life in an emergency.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.

Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept.

1, 1994.

SUBCHAPTER D. PROTECTION OF PROPERTY

Sec. 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, Sec. 1, eff. Jan. 1, 1974.

Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept.

1, 1994.

Sec. 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, Sec. 1, eff. Jan. 1, 1974.

Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept.

1, 1994.

Sec. 9.43. PROTECTION OF THIRD PERSON'S PROPERTY. A person is

justified in using force or deadly force against another to

protect land or tangible, movable property of a third person if,

under the circumstances as he reasonably believes them to be, the

actor would be justified under Section 9.41 or 9.42 in using

force or deadly force to protect his own land or property and:

(1) the actor reasonably believes the unlawful interference

constitutes attempted or consummated theft of or criminal

mischief to the tangible, movable property; or

(2) the actor reasonably believes that:

(A) the third person has requested his protection of the land or

property;

(B) he has a legal duty to protect the third person's land or

property; or

(C) the third person whose land or property he uses force or

deadly force to protect is the actor's spouse, parent, or child,

resides with the actor, or is under the actor's care.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.

Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept.

1, 1994.

Sec. 9.44. USE OF DEVICE TO PROTECT PROPERTY. The justification

afforded by Sections 9.41 and 9.43 applies to the use of a device

to protect land or tangible, movable property if:

(1) the device is not designed to cause, or known by the actor

to create a substantial risk of causing, death or serious bodily

injury; and

(2) use of the device is reasonable under all the circumstances

as the actor reasonably believes them to be when he installs the

device.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.

Amended by Acts 1975, 64th Leg., p. 913, ch. 342, Sec. 6, eff.

Sept. 1, 1975. Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff.

Sept. 1, 1994.

SUBCHAPTER E. LAW ENFORCEMENT

Sec. 9.51. ARREST AND SEARCH. (a) A peace officer, or a person

acting in a peace officer's presence and at his direction, is

justified in using force against another when and to the degree

the actor reasonably believes the force is immediately necessary

to make or assist in making an arrest or search, or to prevent or

assist in preventing escape after arrest, if:

(1) the actor reasonably believes the arrest or search is lawful

or, if the arrest or search is made under a warrant, he

reasonably believes the warrant is valid; and

(2) before using force, the actor manifests his purpose to

arrest or search and identifies himself as a peace officer or as

one acting at a peace officer's direction, unless he reasonably

believes his purpose and identity are already known by or cannot

reasonably be made known to the person to be arrested.

(b) A person other than a peace officer (or one acting at his

direction) is justified in using force against another when and

to the degree the actor reasonably believes the force is

immediately necessary to make or assist in making a lawful

arrest, or to prevent or assist in preventing escape after lawful

arrest if, before using force, the actor manifests his purpose to

and the reason for the arrest or reasonably believes his purpose

and the reason are already known by or cannot reasonably be made

known to the person to be arrested.

(c) A peace officer is justified in using deadly force against

another when and to the degree the peace officer reasonably

believes the deadly force is immediately necessary to make an

arrest, or to prevent escape after arrest, if the use of force

would have been justified under Subsection (a) and:

(1) the actor reasonably believes the conduct for which arrest

is authorized included the use or attempted use of deadly force;

or

(2) the actor reasonably believes there is a substantial risk

that the person to be arrested will cause death or serious bodily

injury to the actor or another if the arrest is delayed.

(d) A person other than a peace officer acting in a peace

officer's presence and at his direction is justified in using

deadly force against another when and to the degree the person

reasonably believes the deadly force is immediately necessary to

make a lawful arrest, or to prevent escape after a lawful arrest,

if the use of force would have been justified under Subsection

(b) and:

(1) the actor reasonably believes the felony or offense against

the public peace for which arrest is authorized included the use

or attempted use of deadly force; or

(2) the actor reasonably believes there is a substantial risk

that the person to be arrested will cause death or serious bodily

injury to another if the arrest is delayed.

(e) There is no duty to retreat before using deadly force

justified by Subsection (c) or (d).

(f) Nothing in this section relating to the actor's

manifestation of purpose or identity shall be construed as

conflicting with any other law relating to the issuance, service,

and execution of an arrest or search warrant either under the

laws of this state or the United States.

(g) Deadly force may only be used under the circumstances

enumerated in Subsections (c) and (d).

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.

Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept.

1, 1994.

Sec. 9.52. PREVENTION OF ESCAPE FROM CUSTODY. The use of force

to prevent the escape of an arrested person from custody is

justifiable when the force could have been employed to effect the

arrest under which the person is in custody, except that a guard

employed by a correctional facility or a peace officer is

justified in using any force, including deadly force, that he

reasonably believes to be immediately necessary to prevent the

escape of a person from the correctional facility.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.

Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept.

1, 1994.

Sec. 9.53. MAINTAINING SECURITY IN CORRECTIONAL FACILITY. An

officer or employee of a correctional facility is justified in

using force against a person in custody when and to the degree

the officer or employee reasonably believes the force is

necessary to maintain the security of the correctional facility,

the safety or security of other persons in custody or employed by

the correctional facility, or his own safety or security.

Added by Acts 1987, 70th Leg., ch. 512, Sec. 1, eff. Sept. 1,

1987. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff.

Sept. 1, 1994.

SUBCHAPTER F. SPECIAL RELATIONSHIPS

Sec. 9.61. PARENT-CHILD. (a) The use of force, but not deadly

force, against a child younger than 18 years is justified:

(1) if the actor is the child's parent or stepparent or is

acting in loco parentis to the child; and

(2) when and to the degree the actor reasonably believes the

force is necessary to discipline the child or to safeguard or

promote his welfare.

(b) For purposes of this section, "in loco parentis" includes

grandparent and guardian, any person acting by, through, or under

the direction of a court with jurisdiction over the child, and

anyone who has express or implied consent of the parent or

parents.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.

Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept.

1, 1994.

Sec. 9.62. EDUCATOR-STUDENT. The use of force, but not deadly

force, against a person is justified:

(1) if the actor is entrusted with the care, supervision, or

administration of the person for a special purpose; and

(2) when and to the degree the actor reasonably believes the

force is necessary to further the special purpose or to maintain

discipline in a group.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.

Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept.

1, 1994.

Sec. 9.63. GUARDIAN-INCOMPETENT. The use of force, but not

deadly force, against a mental incompetent is justified:

(1) if the actor is the incompetent's guardian or someone

similarly responsible for the general care and supervision of the

incompetent; and

(2) when and to the degree the actor reasonably believes the

force is necessary:

(A) to safeguard and promote the incompetent's welfare; or

(B) if the incompetent is in an institution for his care and

custody, to maintain discipline in the institution.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.

Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept.

1, 1994.