Managing Attorney
If you are facing a criminal charge after a dispute over personal property or land, one question you may have is whether it is possible to raise a defense that you acted to protect your land or property. In some instances, Texas law recognizes a right to use force, and even deadly force, to protect your property against anyone who is trying to steal from you or trespass on your land. However, the right to use force in defense of property is limited to certain situation and fact patterns and always requires you to act reasonably. Regardless of what legal defenses may be available to you, it is always important to proceed cautiously and avoid using physical force whenever possible.
When can you use non-deadly force to protect property in Texas?
Texas recognizes a defense of protection of property that can be raised at trial in some instances if you are facing a criminal charge after using force to defend your land or recover your property. Under Texas Code of Criminal Procedure 9.41, a person who is lawfully on land or in possession of property has a right to use non-deadly force as reasonably necessary to stop the other person’s trespass or interference with property or to recover the property.
In many cases, the key for whether a person’s use of non-deadly force was justified – and whether the defense would apply against a criminal charge like assault – was whether the force was reasonably necessary judged from the point of view of the defendant (in other words, without the benefit on hindsight). It is also important to remember that a defense like the defense of protection of property is usually not raised until trial, and it will usually not prevent you from being arrested in the first place.
Can you use deadly force to protect property in Texas?
Texas law even authorizes the use of deadly force to protect property in very limited cases. Under Texas Code of Criminal Procedure 9.42, if you are justified in using non-deadly force (discussed above), then you may be justified in using deadly force to prevent the commission of certain designated crimes, and you reasonably believe that you do not have any other choice but to use deadly force.
Under Texas law, a person may be justified in using deadly force to protect property that cannot be protected by any other means when the person against who the force is used commits:
- Arson
- Burglary
- Robbery
- Aggravated Robbery
- Theft during nighttime
- Criminal mischief during nighttime
Except for arson and criminal mischief during nighttime, it is also possible to use deadly force to stop a person who is fleeing after committing one of these offenses (but only if there is no other option, which may be very rare).
As you can probably tell, the right to use deadly force to protect property is very limited in Texas and if your actions are not covered by the defense of property statute, you will not be able to successfully raise a defense of property claim against a charge such as aggravated assault. Also, under Texas law, even if you are justified in using force or deadly force to protect property, you can lose the right to raise the defense at all if you recklessly injure another person.
If you are charged with any crime in the Houston area and would like to understand your options call Ceja Law Firm for a free consultation. Attorney Jose Ceja is a former prosecutor who is highly experienced in defending all types of criminal accusation in Texas. Mr. Ceja and his staff are fluent in Spanish.
