Section 9.42 is one of the most misunderstood provisions in Texas law. It does permit the use of deadly force to protect property — but only when a chain of specific conditions is satisfied, and whether they were satisfied is judged by a Harris County jury long after the fact.
What the Statute Requires
A person is justified in using deadly force against another to protect land or tangible, movable property when all three of the following are true:
- He would be justified in using ordinary force against the other under Section 9.41 — meaning he reasonably believes the force is immediately necessary to prevent or stop the other's trespass on the land or unlawful interference with the property; and
- He reasonably believes the deadly force is immediately necessary either:
- to prevent the imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or
- to prevent a person who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and
- He reasonably believes that the property cannot be protected or recovered by any other means, or that using force less than deadly force would expose him or another to a substantial risk of death or serious bodily injury.
The third element does most of the work. If the property could have been recovered by calling the police, by insurance, or by simply letting it go, the justification can fail — and a homicide or aggravated assault charge follows. The theft and criminal mischief provisions also apply during the nighttime only.
Reasonable Belief Is Judged Later, by Strangers
"Reasonably believes" means a belief an ordinary and prudent person would have held in the same circumstances. That determination is made by twelve Harris County jurors, months or years afterward, with the benefit of hindsight, video, and calm deliberation that the person acting did not have. This is why cases under this section are won or lost on scene reconstruction, lighting, timing, and what the accused actually knew at the moment.
Defense of a Third Person's Property
Section 9.43 extends these protections to property belonging to someone else when the actor reasonably believes he has a legal duty to protect it, or the property belongs to a spouse, parent, child, or someone whose property he is under a legal obligation to protect.
An Important Limit — Section 9.05
Even when the use of force is justified, Section 9.05 removes that justification if the actor recklessly injures or kills an innocent third person in the process. A justified shot that strikes a bystander can still be prosecuted.
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Brian Foley is Board Certified in Criminal Law by the Texas Board of Legal Specialization and a former Harris County Felony Chief Prosecutor; Luis Baez is a former Trial Bureau Chief. Call or text (713) 703-1718 for a free, confidential consultation.