Texas CHL Student Notes

VII. Use of Force

Concepts Regarding Use of Force

Mindset, Mental Awareness, Tactics, and Equipment

The material from the Defensive Living seminar is the main content of this section of the course.

CHAPTER 9 -TEXAS PENAL CODE

SUBCHAPTER A. GENERAL PROVISIONS

9.01. Definitions.
In this chapter:
(1) 'Custody' means:
(A) under arrest by a peace officer; or
(B) under restraint by a public servant pursuant to an order of a court.
(2) 'Escape' means unauthorized departure from custody of failure to return to custody following temporary leave for a specific purpose or limited period, but does not include a violation of conditions of community supervision or parole, or following leave that is part of an intermittent sentence. (Chgd. by L.1993, chap. 900(1.01), eff.9/1/94.)
(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.

9.02. Justification as a defense.
It is a defense to prosecution that the conduct in question is justified under this chapter. 'Chgd. by L.1993, chap. 900(1.01), eff. 9/1/94)

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. (Chgd. by L.1993, chap. 900(1.01), eff.9/1/94.)

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 of 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. (Chgd. by L.1993, chap.900(1.01), eff.9/1/94.)

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 the prosecution for the reckless injury or killing of the innocent third person. (Chgd. by L.1993, chap. 900(1.01), eff.9/1/94.)

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. (Chgd. by L.1993, chap. 900(1.01), eff.9/1/94.)

SUBCHAPTER B. JUSTIFICATION GENERALLY

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 judgement or order of a competent court or other governmental tribunal, or in the execution of legal process.(Chgd. by L.1993, chap 900(1.01), eff.9/1/94.)

(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).

Penal Code

(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 of 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.

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 (Chgd. by L.1993, chap. 900(1.01), eff.9/1/94.)
(3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.

SUBCHAPTER C. PROTECTION OF PERSONS

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 he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force. (Chgd. by L.1993, chap 900(1.01), eff.9/1/94.)
(b) The use of force against another is not justified:
(1) in the 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); (Chgd. by L.1993, chap. 900(1.01), eff.9/1/94.)
(3) if the actor consented to the exact force used or attempted by the other; (Chgd. by L.1993, chap 900(1.01), eff.9/1/94.)
(4) if the actor provoked the other's use or attempted use or unlawful force, unless:
(A) the actor abandons the encounter, 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 (Chgd. by L.1993, chap. 900(1.01), eff.9/1/94.)
(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 carrying a weapon in violation of Section 46.02. (Added by L.1993, chap. 900(1.01), eff.9/1/94.)
(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 reasonable 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. (Chgd. by L1993, chap. 900(1.01), eff.9/1/94.)

9.32. Deadly force in defense of person.
A person is justified in using deadly force against another:
(1) if he would be justified in using force against the other under Section 9.31; (Chgd. by L.1993, chap.900(1.01), eff.9/1/94.)
(2) if a reasonable person in the actor's situation would not have retreated; and
(3) when and to the degree he reasonably believes the deadly force is immediately necessary:
(A) to protect himself 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.

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 (Chgd. by L.1993, chap. 900(1.01), eff.9/1/94.)
(2) the actor reasonably believes that his intervention is immediately necessary to protect the third person.

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 and emergency. (Chgd. by L.1993, chap. 900(1.01), eff.9/1/94.)

SUBCHAPTER D. PROTECTION OF PROPERTY

9.41. Protection of one's own property.
(a) A person is lawful possession of land or tangible, moveable 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. (Chgd. by L.1993, chap. 900(1.01), eff.9/1/94.)

9.42. Deadly force to protect property.
A person is justified in using deadly force against another to protect land or tangible, movable property:

Penal Code

(1) if he would be justified in using force against the other under Section 9.41; and (Chgd. by L.1993, chap. 900(1.01), eff.9/1/94.)
(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 form 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.

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: (Chgd. by L.1993, chap. 900(1.01), eff.9/1/94.)
(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.

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:(Chgd. by L.1993, chap. 900(1.01), eff.9/1/94.)
(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.

SUBCHAPTER E. LAW ENFORCEMENT

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 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:(Chgd. by L.1993, chap. 900(1.01), eff.9/1/94.)
(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: (Chgd. by L.1993, chap. 900(1.01), eff.9/1/94.)
(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). (Chgd. by L.1993, chap. 900(1.01), eff.9/1/94.)
(f) Nothing in the 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). (Chgd. by L.1993, chap. 900(1.01), eff.9/1/94.)

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. (Chgd. by L.1993, chap. 900(1.01), eff.9/1/94.)

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. (Chgd. by L.1993, chap. 900(1.01), eff.9/1/94.)

SUBCHAPTER F. SPECIAL RELATIONSHIPS

9.61. Parent-child.
(a) The use of force, but not deadly force, against a child younger than 18 years is justified:

Penal Code

(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. (Chgd. by L.1993, chap. 900(1.01), eff.9/1/94.)

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. (Chgd. by L.1993, chap. 900(1.01), eff.9/1/94.)

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. (Chgd. by L.1993, chap.900(1.01), eff.9/1/94.)