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Understanding Criminal Justification in Texas

If a burglar breaks into a person's bedroom and is holding a gun, the other person would seem justified in shooting the intruder who represented a serious threat. Technically, the shooter killed someone but they should not go to jail for murder if the killing was justified. This may be an example of a criminal justification defense.  

There are some situations where an individual commits a crime but there was a justification for their actions. Chapter 9 of the Texas Penal Code allows for justification excluding criminal responsibility, in certain circumstances. This includes reasons like self-defense, defense of property, or acting out of public duty. When an action is justifiable, the person should not be held criminally liable. 

Types of Criminal Justification Defenses in Texas

There are a number of criminal justification defenses available for individuals charged with a crime in Texas, including: 

  • Self-defense 
  • Deadly force in defense of a person 
  • Defense of a third person 
  • Protection of life or health 
  • Defense of own property 
  • Deadly force to protect property 
  • Protection of third person's property
  • Use of device to protect property 
  • Necessity
  • Acting out of public duty 

If the actions of the accused qualify as one of the justifications excluding criminal responsibility, it may be an affirmative defense that justifies the conduct in question. For example, if a person is accused of assault but the assault was justified as self-defense, the accused may have a defense against criminal assault charges.


Under Tex. Pen. Code § 9.31, a person is justified in using force against another where reasonably necessary to protect the person against the use or attempted use of unlawful force. 

Reasonable use of force can be presumed in many situations, such as where the individual did not provoke the use of force or otherwise engage in criminal activity, when: 

  • Another was using force to enter or attempt to enter the individual's habitation, vehicle, or place of employment. 
  • Another was using force to remove or attempt to remove the individual from their habitation, vehicle, or place of employment. 

When Self-Defense is Not Justified

Words alone are generally not enough to justify the use of force against another. For example, if someone walks by and says they want to beat you up and they continue walking, punching the other person may not be justified because there was only a verbal provocation. 

Resisting arrest may also not be a justification for self-defense, where a known police officer is making an arrest or search. However, the use of force to resist arrest may be justified if the peace officer uses greater force than necessary to make the arrest, as long as the individual believes it is reasonably necessary to protect himself against the officer's use of force. 

Self-defense may also not be an available defense where the individual consented to the exact force used or attempted. For example, if someone volunteers to demonstrate a judo flip, the volunteer cannot punch the judo instructor after consenting to the exact force used. 

Provoking the Use of Force 

Generally, when someone provokes the use of force, that person cannot then claim self-defense. However, when someone provokes the use of force, then abandons the encounter, the individual may then be able to use self-defense against any continued attack. 

For example, Erica and Samantha bump into each other in a crowded bar. Erica shoves Samantha and says she will beat her up. Samantha prepares to fight but Erica realizes she was wrong, apologizes to Samantha and says she'll leave the bar. If Samantha goes to beat up Erica, Erica may be able to claim self-defense in using force against Samantha. 

No Need to Retreat Before Using Self-Defense 

Generally, an individual does not need to retreat before using justified force against another, when that person has the right to be present at that location, is not engaged in criminal activity, and has not provoked the use of force. However, whether the person failed to retreat may be considered whether the use of force was reasonably necessary.   

Deadly Force in Defense of Person 

The use of deadly force against another is more limited. Under Tex. Pen. Code § 9.32, deadly use of force may be justified when it is reasonably and immediately necessary:

  • To protect the actor against the other's use or attempted use of unlawful deadly force; or
  • To prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

For example, Michael was waiting at a traffic light on Slaughter Lane when someone ran up to his car, opened the door and pointed a gun at Michael, trying to pull him out. Michael pulled out his pistol and shot the intruder. In this situation, Michael's use of deadly force may have been justified because another person was using force to enter Michael's vehicle to commit robbery.

Defense of a Third Person in Texas

The use of force may also be justified when it is to protect a third person. Under Tex. Pen. Code § 9.33, using force or deadly force against another may be justified where the individual reasonably believes intervention is immediately necessary to protect the third person, where the third person would be justified in using force to protect himself. 

For example, Julia sees an attacker punch another woman and steal her purse. Julia picks up a rock and throws it at the attacker, injuring the attacker. The woman yells at Julia and tells her they were just shooting a video for a school project. Julia may still be justified in her actions if, under the circumstances, Julia reasonably believed the use of force was necessary, even if she ended up being wrong.  

Protection of Life or Health in Texas

Under Tex. Pen. Code § 9.34, the use of force may be justified to prevent another from committing suicide or inflict serious bodily injury to himself. However, this cannot be used to justify the use of deadly force.  

Defense of Own Property 

Under Tex. Pen. Code § 9.41, use of force may be justified when it is reasonable and immediately necessary to prevent trespassing unlawful interference with property. Force may also be used to reasonably recover property the other individual has no claim to.  

Deadly Force to Protect Property 

The use of deadly force to protect property is more limited. Under Tex. Pen. Code § 9.42, the use of deadly force may be justified to prevent imminent arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime, where the land or property cannot otherwise be protected or recovered. 

Protection of Third Person's Property in Texas

Under Tex. Pen. Code § 9.43, 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 in using force or deadly force to protect his own land or property. This includes where the individual:

  • Reasonably believes the unlawful interference constitutes attempted or consummated theft of or criminal mischief to the tangible, movable property;  or
  • Reasonably believes that the third person has requested his protection of the land or property;
  • Has a legal duty to protect the third person's land or property;  or
  • 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.

Use of Device to Protect Property in Texas

The use of a device to protect property is generally only available as a defense if the use would not cause death or serious bodily injury. Under Tex. Pen. Code § 9.44, the use of a device to protect property must be reasonable under all circumstances when the device is installed. 

For example, Henry is tired of people coming onto his farm to steal watermelons. Henry installs a motion sensor that sets off the sprinklers to spray anyone who comes onto the farm after dark. This may be considered a reasonable use of a device to protect property. 

However, Henry's neighbor, Frank, is also tired of watermelon thieves and digs a pit along the fence, placing sharp sticks pointed upward in the bottom of the pit. Frank's device may not be justifiable as a defense if it causes injury because a pit with spikes may not be reasonable under the circumstances and it creates a substantial risk of serious bodily injury or death. 


Under Tex. Pen. Code § 9.22, conduct may be justified if the individual reasonably believes the conduct is immediately necessary to avoid imminent harm and the urgency of avoiding the harm outweighs the harm that may result. 

For example, Anthony walks by a hardware store parking lot and sees a car on fire. Anthony runs into the store, grabs a fire extinguisher off the shelf and runs outside to put out the fire. If the hardware store calls the police, Anthony may have a defense against shoplifting or theft if Anthony reasonably believed theft was necessary to avoid imminent harm from the car fire.

Acting Out of Public Duty 

Under Tex. Pen. Code § 9.21, conduct may be justified if the individual reasonably believes the conduct is required or authorized by law, by the judgment or order of a competent court or another governmental tribunal, or in the execution of the legal process.

Austin and Travis County Criminal Defense Attorney

If you are accused of a crime but have a reason why you acted as you did, you may have an affirmative defense against the criminal charges. Texas criminal defense lawyer Jason S. English was a prosecutor in Texas for 15 years. He understands what prosecutors are looking for and will use his experience to protect your constitutional rights.

If you are accused of a misdemeanor or felony offense, you have the right to a strong legal defense. Contact Jason S. English Law, PLLC today.  


Office Location

Jason English
505 West 12th Street, Suite 201
Austin, TX 78701