The Castle Doctrine and Standing Your Ground in Texas

1. (1) force is necessary to prevent or terminate another's trespass on land or unlawful interference with the property, or


2. (2) deadly force is reasonably necessary to prevent another who is committing arson, burglary, robbery, aggravated robbery, theft or criminal mischief at night, or immediately fleeing with property after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property, and


3. (3) the person reasonably believes that the property cannot be protected or recovered by any other method, or that the use of non-deadly force to recover the property would expose them to a substantial risk of death or serious bodily injury,

1. The use of force is not justified in response to verbal provocation alone. (If someone is only yelling at you, you are not justified in using force against them).


2. You will not be justified in using force to resist an arrest or search being made by a police officer (unless the officer uses greater than reasonable force), even if the arrest or search is ultimately proven to be unlawful.


3. The use of force against another is not justified if you consent to the force. (No dueling or consenting to gun fights).


4. You provoked the use of force, unless you have clearly abandoned the encounter.


5. If you seek a discussion with another person regarding your differences while unlawfully carrying a weapon, you will not be given the “No Duty to Retreat” protection. Unlawful carry of a weapon includes:


• a non-CHL holder carrying in places other than their premises, place of business, vehicle or watercraft;
• having a handgun in plain view;
• engaging in criminal activity while carrying a weapon,
• carrying a weapon by a person who is a member of a criminal street gang; or,
• Carrying a prohibited weapon.

As we discussed earlier, the first thing that must be satisfied to receive the “No Duty to Retreat” Protection is that the person must have had a legal right to be in the location where deadly force was used. What does the law mean when it says that you must “be in a location where you have a legal right to be?” The best way to clarify this is to discuss places where you do not have a legal right to be. Any location where you would be considered a trespasser is, by definition, a place where you do not have a legal right to be. Under Texas Penal Code §30.05, a person becomes a criminal trespasser if they enter or remain on property without effective consent, or the person had notice that entry was forbidden or received notice to depart but failed to do so. Notice of trespassing includes: oral or written communication, fencing, signs posted on the property indicating that entry is forbidden, purple paint marks on trees or posts on the property, or crops for human consumption growing on the property. As long as you are in a place where you are not considered a trespasser by the law, you most likely have a legal right to be there under the “No Duty to Retreat” statutes.

In addition to the location test, you cannot have provoked the other's use or attempted use of force. You cannot start a fight and then claim justification for your use of force or deadly force. There is, however, an exception to this rule. If you abandon the encounter or clearly communicate your intent to abandon, and you cannot do so safely, and the other continues to use unlawful force against you, you do not have a duty to retreat.

A very similar scenario played out in a district court in Harris County. An individual was convicted of murdering his neighbor during a conflict that started as a result of a noise complaint. The accused individual videotaped the entire confrontation. The last few minutes of the video seem to show that the man was justified in discharging his firearm after three men charged him. However, prior to the last few minutes, approximately twenty minutes of the video showed the accused leaving his property with his handgun, trespassing on his neighbor's property, and taunting the neighbors by flashing his pistol. As a result of these actions the man did not qualify under the "No Duty to Retreat" statutes. In fact, the prosecutor in the case told the jury that "self-defense was never meant to protect the one that started the fight." The jury only deliberated for 90 minutes before returning a verdict of guilty on a murder charge and ultimately sentenced him to 40 years in prison.

Finally, you cannot be engaged in any criminal activity, other than a Class C misdemeanor traffic offense at the time deadly force was used and claim self-defense.

As you can see, the Texas versions of the Castle Doctrine and Stand Your Ground laws are extremely complex and cannot be summarized with a simple catch phrase. These topics consume thousands of pages of legal treatises, so this article is only a brief overview of the intricacies that are involved with these topics. We hope, however, that this newsletter provides you with a better understanding of both of these legal topics, and if you have any questions about Texas firearms laws, do not hesitate to contact us.