CHAPTER 9. JUSTIFICATION EXCLUDING CRIMINAL RESPONSIBILITY
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.