For those lucky readers of mine that reside in the great State of Texas, I wanted to provide you an easy to reference guide on what the law states how you can handle trespassers on your property. Firstly, lets define Criminal Trespass as it is written in the Texas Penal Code 30.05:
CRIMINAL TRESPASS. (a) A person commits an offense if he enters or remains on or in property, including an aircraft or other vehicle, of another without effective consent or he enters or remains in a building of another without effective consent and he: (1) had notice that the entry was forbidden; or (2) received notice to depart but failed to do so. (b) For purposes of this section: (1) “Entry” means the intrusion of the entire body. (2) “Notice” means: (A) oral or written communication by the owner or someone with apparent authority to act for the owner; (B) fencing or other enclosure obviously designed to exclude intruders or to contain livestock; (C) a sign or signs posted on the property or at the entrance to the building, reasonably likely to come to the attention of intruders, indicating that entry is forbidden.
Despite widely held beliefs, you CANNOT use DEADLY FORCE in dealing with Criminal Trespassers simply because they are on your property without consent! I know some of you are saying “Well what about the Castle Doctrine?”
I found that explanation on Texas Gun Talk, which according to the post credits, had been written by the folks at Texas Law Shield:
What About People Who are Only Trespassers?
Make sure that you do not fall victim to the common misconception that the Castle Doctrine gives you “carte-blanche” to use deadly force merely because someone is on your property. It does not. Many people think that the law allows you to use deadly force against a mere trespasser. In fact, Texas law says the exact opposite. Texas Penal Code §9.41 allows you to use Force, NOT Deadly Force, that is reasonably necessary to prevent or terminate another’s trespass on your land.
You still have a legal right to exclude or remove trespassers from your land; however you are limited to only using non-deadly force to do so. The use of force can have many different manifestations, from physical confrontation to displaying a weapon. Texas Penal Code §9.04 states that for defensive purposes the display of a weapon in order to create apprehension in another person is considered a use of force but not deadly force. That means if someone trespasses on your property, you may display your firearm to create apprehension that you will use deadly force if necessary. You will not be legally justified in discharging the firearm, but you will be legally justified in displaying it to “create apprehension” under the law.
Only if the trespasser is committing “other acts” are you justified in using deadly force would you be allowed to discharge your firearm legally.
For example: If you are sitting in your living room and see an individual peering in your window, you will probably not be justified under Texas law in using deadly force against the suspicious person. However, if the same fellow breaks a window and climbs through, you will be legally justified in using deadly force under Texas Penal Code §9.32. If you see the same individual scoping out your detached barn, you will not fall under Texas Penal Code §9.32, because it is not considered an occupied habitation. Note under our examples you may very well be justified under another section of the law in the use of deadly force, but not under Texas Penal Code §9.32, or what the media calls the “Castle Doctrine.”
The “other acts” in the above paragraph refer to Sec 9.42. This is very important for the CO to understand; If you memorize any law in the TX Penal Code, know this one!
TX Penal Code 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.
So to sum it up guys, you CANNOT use Deadly Force on a Trespasser simply because they are on your property without your consent. You can Display a Weapon to Intimidate and create apprehension in the Trespasser, but not discharge the weapon and use LETHAL FORCE unless the Trespasser makes you feel “in fear for your life” through either an attack with lethal intent or they escalate the situation and do any of the following acts: Arson, Burglary, Robbery, Aggravated Robbery, **Theft during the Nighttime, or **Criminal Mischief during the Nighttime.
** I want you to notice that LETHAL FORCE is mandated here by the time of day (night time) with Theft or Criminal Mischief. This is a key thing to remember: The Law states you can KILL a person if they are committing either of these acts on your property at night.
The CO, as a property owner, can do a few simple things to help prepare to combat Trespassers:
- Don’t forget to post proper SIGNAGE that entry is forbidden on your property to be in compliance with TX PC 30.05. For those of you with rural property in TX, this includes using purple paint as a marker (see paragraph (D) for full explanation).
- Place in-discriminate Trail Cameras around your property. These are motion triggered and most models are night vision capable. This will provide photographic evidence that will help you prosecute. A CCTV system is another option if you want constant surveillance.
- If so inclined, the CO can place Lighting and Motion Detectors to be alerted real time of any trespassers.
Stay Informed, Stay Alert and Stay Dangerous!