Texas Castle Doctrine - The law: word for word.

I’ve had multiple requests for the actual text, summary, or analysis of the ‘Texas Castle Doctrine’ [SB 378] that went into effect on 9/1/2007. What results below is a summary of the bill, the analysis of the bill, and the word for word copy of the bill as it passed.

[Summary of the Bill]

Legislative Session: 80(R)

Senate Bill 378	Senate Author: Wentworth et al.
Effective: 9-1-07	House Sponsor: Driver et al.

Senate Bill 378 amends provisions of the Penal Code and the Code of Criminal Procedure relating to the use of force or deadly force in defense of a person. The bill creates a presumption of reasonableness for the belief of a person who takes such action that the use of force or deadly force to protect the actor was immediately necessary and provides that the presumption would be reasonable if the actor:

1) knew or had reason to believe that the person against whom the force or deadly force was used unlawfully and with force entered, or attempted to enter, the actor’s home, vehicle, or place of business or employment; unlawfully and with force removed, or attempted to remove, the actor from the home, vehicle, or place of business or employment; or was committing or attempting to commit certain serious crimes;

2) did not provoke the person against whom the force or deadly force was used; and

3) was not otherwise engaged in certain criminal activity at the time the force or deadly force was used.

The bill provides that an actor who has a right to be present at the location where the force or deadly force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at that time is not required to retreat before using force or deadly force.

Senate Bill 378 also provides immunity from civil liability for a personal injury or death resulting from the use of force or deadly force to a defendant who was justified under the law in using such force or deadly force.

[BILL ANALYSIS]

Senate Research Center S.B. 378

By: Wentworth et al.

Jurisprudence

6/25/2007

Enrolled

AUTHOR’S / SPONSOR’S STATEMENT OF INTENT

In 1973, the 63rd Texas Legislature imposed a duty to retreat in the face of a criminal attack, permitting the use of deadly force only if a reasonable person in the situation would not have retreated. This, in effect, placed the burden on the victim to retreat in the face of an impending lethal attack and reversed what had been the longstanding practice of recognizing the right of a person to stand his or her ground in the face of an attack. In 1995, the 74th Texas Legislature created an exception to the duty to retreat before using deadly force in response to an unlawful entry into the habitation of the actor, but the duty still applied in any other location where a lethal attack might occur.

Under Chapter 9 (Justification Excluding Criminal Responsibility), Penal Code, a person is justified in using force and, in some instances, deadly force to repel an aggressor. In deadly force situations, the person must reasonably believe that the force is immediately necessary to protect his or her person from the exercise of unlawful deadly force by the aggressor or to prevent the imminent commission of an aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery. Current law provides an affirmative defense to a civil action brought by an attacker for damages for personal injury or death resulting from the use of force or deadly force, but only in cases involving home invasions. As a result, a person who justifiably uses force or deadly force outside of the home and is not guilty of any crime may still be open to a civil action filed by the criminal or the criminal’s family.

In addition, the Texas Penal Code contains no presumption of reasonableness in defending a home, vehicle, place of business, or place of employment against unlawful intruders. Instead, Texas juries must decide after the fact whether a victim’s actions to protect the victim and his or her family were reasonable or necessary under the circumstances.

S.B. 378 explicitly states in law that a person has no duty to retreat if the person is attacked in a place where he or she has a right to be present, if he or she has not provoked the attacker, and if the person using force is not engaged in criminal activity at the time the force is used. In addition, the jury is instructed to presume that the victim’s actions were reasonable if the victim brings forth evidence that he or she is entitled to the presumption, unless the state can prove otherwise beyond a reasonable doubt. Finally, the bill expands the existing affirmative defense to a civil action brought by an injured criminal attacker or his family to apply to any force or deadly force conduct authorized by Subchapter C (Protection of Persons), Chapter 9, Penal Code.

RULEMAKING AUTHORITY

This bill does not expressly grant any additional rulemaking authority to a state officer, institution, or agency.

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Section 9.01, Penal Code, by adding Subdivisions (4) and (5), to define “habitation” and “vehicle.”

SECTION 2. Amends Section 9.31, Penal Code, by amending Subsection (a) and adding Subsections (e) and (f), as follows:

(a) Provides that an actor’s belief that the use of force was immediately necessary is considered reasonable if the actor did not provoke the person against whom the force was used, was not engaged in certain criminal activity, and knew or had reason to believe that the person against whom the force was used unlawfully and with force was committing or attempting to commit certain acts, did not provoke the person against whom force was used and was not otherwise engaged in criminal activity, other than certain Class C misdemeanors. Makes nonsubstantive changes.

(e) Provides that a person who has a right to be present at the location where the force is used is not required to retreat before using force, provided that the person has not provoked the person against whom the force is used and is not engaged in criminal activity.

(f) Prohibits a finder of fact from considering whether the actor failed to retreat when determining whether an actor reasonably believed that the use of force was necessary, for purposes of Subsection (a).

SECTION 3. Amends Section 9.32, Penal Code, as follows:

Sec. 9.32. DEADLY FORCE IN DEFENSE OF PERSON. Deletes existing text relating to whether a reasonable person in the actor’s situation would have not retreated in determining justified use of deadly force. Makes conforming and nonsubstantive changes.

SECTION 4. Amends Section 83.001, Civil Practice and Remedies Code, as follows:

Sec. 83.001. New heading: CIVIL IMMUNITY. Provides that a person who uses force or deadly force justified under Chapter 9 (Justification Excluding Criminal Responsibility), Penal Code, is immune from civil liability for personal injury or death that results from the defendant’s use of force or deadly force, as applicable. Deletes existing text relating to an affirmative defense to civil action arising from the use of justifiable deadly force.

SECTION 5. Makes application of this Act prospective.

SECTION 6. Effective date: September 1, 2007.

S.B. No. 378 [Word for word as it passed - Underlines indicate text that was struck or reworded in the bill]

AN ACT

relating to the use of force or deadly force in defense of a person.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 9.01, Penal Code, is amended by adding Subdivisions (4) and (5) to read as follows:

(4) “Habitation” has the meaning assigned by Section 30.01.

(5) “Vehicle” has the meaning assigned by Section 30.01.

SECTION 2. Section 9.31, Penal Code, is amended by amending Subsection (a) and adding Subsections (e) and (f) to read as follows:

(a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree the actor [he] reasonably believes the force is immediately necessary to protect the actor [himself] 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.

(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.

SECTION 3. Section 9.32, Penal Code, is amended to read as follows:

Sec. 9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A person is justified in using deadly force against another:

(1) if the actor [he] would be justified in using force against the other under Section 9.31; and

(2) [if a reasonable person in the actor's situation would not have retreated; and

[(3)] when and to the degree the actor [he] reasonably believes the deadly force is immediately necessary:

(A) to protect the actor [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.

(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 [requirement imposed by Subsection (a)(2) does not apply to an actor who uses force against a person who is at the time of the use of force committing an offense of unlawful entry in the habitation of the actor].

(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.

SECTION 4. Section 83.001, Civil Practice and Remedies Code, is amended to read as follows:

Sec. 83.001. CIVIL IMMUNITY [AFFIRMATIVE DEFENSE]. A [It is an affirmative defense to a civil action for damages for personal injury or death that the] defendant who uses force or[, at the time the cause of action arose, was justified in using] deadly force that is justified under Chapter 9 [Section 9.32], Penal Code, is immune from civil liability for personal injury or death that results from the defendant’s [against a person who at the time of the] use of force or deadly force, as applicable [was committing an offense of unlawful entry in the habitation of the defendant].

SECTION 5. (a) Sections 9.31 and 9.32, Penal Code, as amended by this Act, apply only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for this purpose. For the purposes of this subsection, an offense is committed before the effective date of this Act if any element of the offense occurs before the effective date.

(b) Section 83.001, Civil Practice and Remedies Code, as amended by this Act, applies only to a cause of action that accrues on or after the effective date of this Act. An action that accrued before the effective date of this Act is governed by the law in effect at the time the action accrued, and that law is continued in effect for that purpose.

SECTION 6. This Act takes effect September 1, 2007.

______________________________ ______________________________
President of the Senate Speaker of the House

I hereby certify that S.B. No. 378 passed the Senate on March 13, 2007, by the following vote: Yeas 30, Nays 0.

______________________________
Secretary of the Senate

I hereby certify that S.B. No. 378 passed the House on March 20, 2007, by the following vote: Yeas 133, Nays 13, one present not voting.

______________________________
Chief Clerk of the House

Approved:

______________________________
Date

______________________________
Governor

All of the above text is courtesy of the Texas Legislature Online. The exact articles can be found here.

Texas Castle Doctrine

‘Castle law’ arms Texas homeowners with right to shoot
Does new law make them quicker to pull the trigger?

12:06 AM CST on Sunday, January 20, 2008
By MICHAEL E. YOUNG / The Dallas Morning News
myoung@dallasnews.com

The shootings came fast, a bang-bang-bang cluster of cases starting in early autumn that quickly had police, prosecutors and the media wondering about the sudden impact of Texas’ new castle law.

A business owner who lives at his West Dallas welding shop killed two men in three weeks as they tried to break in.

A 79-year-old homeowner in east Oak Cliff, awakened by his dog, struggled with an intruder before grabbing a shotgun and wounding the man.

A retired Army warrant officer managed to kill a gun-wielding robber at a Far East Dallas dry cleaners after his wife surprised the intruder and handed her husband their own 9 mm handgun.

Texas has long had a reputation as a shoot-first-ask-questions-later place, dating back to its frontier days.

But the spate of shootings begs the question: Did the castle law – which gives people the right to use whatever means necessary to protect themselves and their property without fear of civil liability – unleash a flurry of gunfire?

Perhaps just as important, has the law changed people’s perceptions about fighting back? Are they more likely to shoot first even when safe retreat may be an option?

“I think the castle law has more citizens thinking about fighting back, knowing they’re protected from being sued later,” said Dallas homeowner Dennis Baker.

He shot and killed a burglar in October after seeing the man enter the garage where he stored thousands of dollars worth of tools.

But Dr. Gary Kleck, a professor of criminology at Florida State University, doesn’t think the castle law governs someone’s thinking when they hear a window softly opening late at night, or the crash of a door coming down in a home invasion.

“In situations in which people would be making a decision to use defensive violence, it’s very unlikely they’d be thinking about laws and penalties,” he said. “That would be the furthest thing from their mind.”

Certainly the castle law has become a high-profile addition to the Texas statutes since it took effect Sept. 1, but police and the district attorneys association argue that it brought little substantial change.

While it appeared to apply to each of these cases, so did a batch of other laws, along with the tradition of Texas juries giving people every benefit of the doubt when protecting themselves, their families and their property.

None of these property owners was charged. Police referred a few cases to the Dallas County grand jury, which declined to indict. In others, police determined that the shootings were justified.
Police’s take

And they see the rash of shootings as part of a normal cycle, not a trend.

Dallas police homicide investigators said they’ve yet to encounter a self-defense situation since the castle law took effect that would have been barred under previous laws.

“There may come a time when that’s not the case,” said Lt. Craig Miller. “But I would have to look at each of those under its own merits.”

Shannon Edmonds, director of governmental relations for the Texas District and County Attorneys Association, said he didn’t know of a single Texas case in which the castle law would have made a difference.

“The reality is Texas grand juries routinely no-billed deadly force cases under the old law, which was very lenient,” he said. “Many of the cases that you read about center on defense of property laws, which were always very, very lenient in the use of deadly force.

“That’s just how Texas is.”

Dr. Kleck said some states, including Texas, have legal systems with broad definitions of self-defense.

“There was a study of homicides in Houston sometime back,” he said, “and a huge percentage of those cases were defined as justifiable.

“But in the Northeast, another study showed that almost none of the cases there were justifiable under the law.”
Neighbor fights back

One Texas case in particular has attracted national attention, in part because of the circumstances: It was a neighbor, not the homeowner, confronting and killing a pair of burglars Nov. 14.

Joe Horn of Pasadena, Texas, was heard on a 911 tape telling Diego Ortiz and Hernando Torres, “Move, you’re dead,” before shots were fired.

And the neighbor mentioned in a 911 call that a new law gave him the right to protect himself if he confronted the burglars.

The 61-year-old Pasadena man, Joe Horn, told the police operator: “The laws have been changed in this country since September the first, and you know it.”

“You’re going to get yourself shot,” the operator warned.

“You want to make a bet?” Mr. Horn said. “I’ll kill them. They’re getting away!”

“That’s OK. Property’s not worth killing someone over, OK?” the operator said. “Don’t go out of the house. Don’t be shooting nobody.”

The burglars emerged from the house, carrying “a bag of loot,” Mr. Horn said.

“Which way are they going?” the operator asked.

“I can’t … I’m going outside, then I’ll find out,” Mr. Horn said.

“No, I don’t want you going outside,” the operator said.

“Well, here it goes, buddy,” Mr. Horn replied.

Seconds later, Mr. Horn can be heard saying, “Move, you’re dead,” followed by two shots and then a third.

“I had no choice,” Mr. Horn said in a second 911 call. “They came in the front yard with me, man.”

Was the castle law designed to cover those circumstances?

No, said the law’s author, state Sen. Jeff Wentworth, R-San Antonio.

“You’re supposed to be able to defend your own home, your own family, in your house, your place of business or your motor vehicle,” he said – but not your neighbor’s.

But Mr. Edmonds said other property laws could provide a defense for Mr. Horn, whose case is under investigation.

“The laws governing the use of force to defend property instead of a person are very broad and very favorable to someone who wants to use that force,” Mr. Edmonds said.

Chapter 9 of the Texas Penal Code describes deadly force as justified to prevent arson, robbery, theft or criminal mischief at night, or to prevent a suspect from fleeing if the property owner “reasonably believes the land or property cannot be protected or recovered by any other means; or 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.”

“You hear someone stealing something off your front porch. You come out there with a gun, and they’re running off. It’s nighttime. The law in Texas allows you to shoot them,” said former Dallas County prosecutor Toby Shook.
Juries’ leniency

Texas grand juries have traditionally given people carte blanche to take whatever steps they need to keep their property, Mr. Edmonds said. “In the Pasadena case, as egregious as the facts may be,” he said, “the law may still excuse that person’s conduct.”

He pointed to a case near Waco in the 1990s when the owner of a car saw a group of teenagers stealing his hubcaps late one night.

“He shot at them from his apartment and killed one of them” Mr. Edmonds said. “The grand jury no-billed it.”

Jim Cornehls, an attorney and professor of urban and public affairs at the University of Texas at Arlington, said he defended a man a few years ago in similar circumstances.

The man lived in an apartment complex where kids left their bikes in a central courtyard.

“There had been a rash of bike thefts,” Dr. Cornehls said, “and when this man got home from work late one night, he saw a guy out there purloining a bike.

“He whipped out his .22 and shot him. He didn’t kill him, but he wounded him, and the prosecutors let that one slide. In his case, it wasn’t even his property. It was a random bike.”
Law necessary?

But if Texas law already allowed people to defend themselves, their families and their properties against a whole array of crimes, did the state really need the castle law?

Absolutely, Mr. Wentworth said.

“I read in the newspaper a couple of years ago that Jeb Bush, the governor of Florida, was signing the castle doctrine there to allow residents to defend themselves in their own homes,” the senator said. “And I thought, ‘Isn’t that silly? We in Texas have always had that right.’

“But when I checked, I discovered that through legislative and judicial action in the 1970s, we’d changed the law. Before that, there was no fear of indictment or civil suits if you defended yourself in your home. But we lost that in 1974.”Rather than using whatever means necessary to protect yourself and your family, he said, Texans “didn’t have a right to stand and defend themselves, but an obligation to retreat.”

And if that was impossible, he said, the resident had the obligation to ascertain whether the intruder was armed – and with what – and respond only with the appropriate level of force to match the threat.

“I believe you have the right to defend yourself with any means necessary without fear of being indicted or sued by the intruder or his or her survivors,” Mr. Wentworth said.
Tried every measure

Mr. Baker believes that, too.

He had lived in his modest neighborhood just north of Dallas Love Field for 15 years without a problem when burglars began stealing his equipment – five times in two months.

He stored his tools in his garage, protected behind a locked six-foot gate and next to a back yard bathed by a light so bright that a friend said it looked like the Texas Rangers’ ballpark.

It wasn’t enough to deter the thieves.

On an early October morning, Mr. Baker heard a noise – his Mexican red-headed parrot, Salvador, had squawked an emphatic “Hello,” something he does whenever someone passes by. Mr. Baker flipped on a closed-circuit monitor and saw a man walk into his garage.

Mr. Baker said he had seen the man before, on tapes of the earlier burglaries.

“If he needed a fast fix, he’d go into my garage and grab something and take it to his drug connection,” Mr. Baker said earlier this month.

That night, he decided to confront the intruder, identified as John Woodson, 46, of Dallas, who had a criminal record for various offenses, including burglary.

“I went out the front door and came through the gate, and when he started walking from the back of the garage toward me, that’s when I shot him,” Mr. Baker said.

When police arrived, a homicide detective watched the video and told Mr. Baker, “This is by the book.”

The case received international attention, largely because of Salvador, the parrot. But Dallas grand jurors treated it as Texas juries usually do: They declined to indict.

That’s one of the reasons county prosecutors argued against the castle law in committee hearings before it was approved. It really wasn’t necessary, they said, because more than a half-dozen self-defense provisions already existed in Texas law. And Texas juries almost always sided with the person protecting his own.

“In 25 years, I’ve never known a Harris County court to prosecute a homeowner or businessman for killing a burglar or robber,” Harris County Assistant District Attorney Bill Delmore told legislators. “We don’t do that.”

Jana McCown, an assistant district attorney for Williamson County, echoed that in her remarks.

“I can assure you that we don’t try to arrest homeowners or crime victims for protecting themselves against crime,” she said.

But the Legislature overwhelmingly supported Mr. Wentworth’s bill, and it was quickly signed into law.
In the courtroom

Now judges and prosecutors need to figure out how to deal with it in the courtroom.

“Prosecutors who were concerned about the law were concerned about how it will operate in court, not in the street,” said Mr. Edmonds of the district and county attorneys association.

The castle law says the use of force or deadly force is presumed to be reasonable if someone unlawfully and with force enters an occupied home, business or car. Further, if the force used against the intruder was reasonable according to the statute, the occupant is immune from civil liability for injuries or death.

For Mr. Baker and many in Texas, the right to defend family, home and property only makes sense.

But others, including Marsha McCartney of Dallas, a member of the Brady Campaign to Prevent Gun Violence, say the law becomes a death sentence for criminals who would never face that in court.

In practical terms, Ms. McCartney said, there doesn’t even need to be an explicit threat of attack to justify a shooting over property. In several local cases, she said, property owners didn’t appear to be in any danger, yet shot and killed unarmed intruders.

“I find that shocking – killing people over things,” she said. “The question you have to ask is: Does the punishment fit the crime?

“People don’t get the death penalty for breaking and entering. Defending your family, defending yourself against someone who is armed is one thing. But now it’s like we don’t need to call the police anymore.”

Steven Jansen of the American Prosecutors Research Institute in Alexandria, Va., said the so-called “no-retreat” castle laws largely take away discretion from local district attorneys, even in cases with questionable circumstances.

“The law always was that you had a right to defend your home and your person, and the prosecutor had discretion at that point to look at the facts and decide what a prudent person would do,” said Mr. Jansen, a former prosecutor in Detroit.

“But the castle doctrine laws extend that right to self-defense to places outside the home – almost anywhere a person has a legal right to be – and providing for criminal and civil immunity for the person using the lethal force.

“That isn’t even extended to police officers who use their guns in the line of duty.”
Emotional backlash

Still, there can be a price to pay for taking the life of another.

Dr. Heidi Vermette, medical director for mental health at the Veterans Administration in Dallas and an assistant professor of psychiatry at UT Southwestern Medical Center, said a person who shoots another human could suffer from acute stress disorder, or even post-traumatic stress disorder.

“Acute stress disorder lasts for a few days to four weeks or so,” she said, “and people with it tell you they feel numb as they recall the event. They say things like, ‘I was in a daze,’ or ‘It was as if time was standing still.’

“And afterward they might not be able to remember the event. Or they re-experience the event. Nightmares are common and feeling distressed.”

Mr. Baker said a friend, a child psychologist, called him after the shooting at his house.

“She talked with me for hours, and she said, ‘When this is over, when the attention is gone, this will work on you mentally,’ ” he said.

“But then another friend of mine told me that every occupation has an occupational hazard. A fireman can die in a fire. A coal miner can die in a mining accident. And a burglar can die in someone’s garage in the dark of night.

“I guess I was his occupational hazard.”

But a few minutes later, he sat quietly in an office chair, looking down.

“It’s hard to look at some things because he was a human being,” Mr. Baker said. “But he had a drug problem.

“The people closest to him should have gotten him some help.”

Staff writer Steve Thompson contributed to this report.

RIGHTS UNDER NEW LAW

Major provisions of Texas’ Castle Law:

• Presumes you are reasonable in using force if someone – illegally and with force – enters or is attempting to enter your occupied home, car or workplace. You are not given this presumption if you provoked the person or are engaged in a crime.

• Removes your obligation to retreat if possible before using deadly force if you are anywhere you have a right to be. The previous law obliged you to retreat if a “reasonable person” would have, except in a situation where someone unlawfully entered your home.

• Gives you added protection from lawsuits by injured attackers or their families. Previous law granted this protection if someone illegally entered your home, but not in other situations.

SOURCE: Dallas Morning News research