Can You Shoot a Fleeing Thief? | Texas

It’s midnight, and you awaken to strange sounds somewhere outside the front of your home. You get out of bed, grab your firearm, run to your front window and look outside. That’s when you see a masked man in your yard, peeking into your car, and looking around for security cameras. What can you legally do to stop him? Do you have to let him steal your property?

Let’s change it up a bit, what if the sound turns out to be broken glass from your front door, and you walk into your living room only to discover your front door wide open? You hear someone moving in the next room, and you know your wife and child are still in bed, asleep. What should you do?

These are very frightening scenarios we hope you never face, but we want you to understand the potential criminal consequences that you, as a responsible gun owner, could face if you use force or deadly force to defend against certain types of crimes involving property. Remember, many states strictly forbid the use of deadly force to protect your property.

Criminal Consequences

Let’s look at the potential criminal consequences you could face if you decide to confront these types of perpetrators with force or deadly force.

Texas Penal Code Section 9.41 explains that a person is allowed to use force, but not deadly force, to terminate a mere trespass or interference with property.

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  • “Trespass” occurs when a person enters onto or into property, knowing that entry is forbidden or remains on the property after being told to leave by someone with authority.
  • “Theft” or “Interference with Property” occurs when a person takes another’s property with the intent to deprive them of that property and without the owner’s consent.

Going back to the example above, if you grab your firearm, go outside and fire a shot at the trespasser or someone merely creeping around your yard, you will likely find yourself facing a serious felony. In these circumstances, Texas Law only permits the use of force, not deadly force.

Now, what if the trespasser sees you, but instead of running away, he comes toward you with a weapon in one hand and your property in the other? It’s important to note that this is no longer a mere trespass. It has quickly changed to an attempted murder or an aggravated robbery. This distinction is important when we discuss the use of force or deadly force because if you choose to use deadly force and fire upon the perpetrator, your conduct will likely be justified.

Remember, the starting point for using force or deadly force in Texas can be boiled down to two things: reasonableness and immediate necessity.

So, when can you use deadly force in Texas to protect property? Texas law allows you to use deadly force to protect property if you would be justified in using force, and you reasonably believe it is immediately necessary to prevent the imminent commission of specific enumerated property crimes. These are arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime.

Turning to the second example we discussed earlier, the sound of breaking glass and finding your front door wide open. It is very likely that you’ve discovered the imminent commission of one or more of the crimes where Texas law allows the use of deadly force. The bad guy is no longer a mere trespasser and his conduct is elevated to the point where he’s probably committing or attempting to commit burglary or worse.

Recovering Property

Let’s take both examples one step further and address a common question we’re asked: “What happens if I discover that the criminal already has my property and runs away when he sees me approach with a firearm? What can I legally do to recover my property?” When it comes to using deadly force to recover your stolen property, Texas juries will have a three-step process to decide if you were legally justified.

  • Step 1: The jury must find that you were justified under Texas Penal Code section 9.41 to use force to stop a trespasser or an interference with your property.
  • Step 2: The jury must decide whether you had a reasonable belief that deadly force was immediately necessary to prevent a perpetrator from fleeing immediately after committing a burglary, robbery, aggravated robbery, or theft during the nighttime.
  • Step 3: The jury must find that when you used deadly force to protect property, you reasonably believed it could not have been protected or recovered by other means; or using something less than deadly force would expose you to a substantial risk of death or serious bodily injury.

If the jury finds you were reasonable in your actions under all three of these steps, they should find your use of deadly force legally justified. Be very careful though. It may be a daunting task to convince 12 jurors that you acted reasonably in shooting someone to recover property alone, particularly where the criminal no longer posed a threat to you or your family.

Also, keep in mind this three-step analysis occurs after you’ve been arrested and charged with a crime for defending your property, during a trial, and nothing is ever guaranteed when you put a verdict in the hands of a jury.

It’s critical that you completely understand these legal concepts. If you have any questions about your rights to defend your property or any other self-defense law in Texas, don’t hesitate to call Texas Law Shield and ask to speak to your Independent Program Attorney.

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Comment section

14 comments on “Can You Shoot a Fleeing Thief? | Texas

  1. How do the thief in the night law fit into your scenarios? after all at night you can’t tell if he has a weapon or not until it is too late. I always felt it was cheaper to replace the stolen property than go thru the long legal process to prove you were justified if the criminal was doing a smash and grab.

    • Great question! Deadly force can be used against a thief at nighttime, but it can only be used as a last resort. That is, only if the property cannot be protected or recovered through any other reasonable manner. Of course if a person confronts a thief who then threatens their life, the situation has changed and now a victim can use deadly force to protect themselves against a thief who has chosen to attack them rather than surrender or run away.

  2. Is the purple law still in effect in Texas?

    • Yes, purple paint on a tree or post is one way of giving a criminal trespass warning. The paint has to be vertical lines not less than 8 inches long and 1 inch wide, place between 3 feet and 5 feet off the ground, and placed at locations that are readily visible to someone approaching the property and are no more than 100 feet apart on forested land or 1000 feet apart on non-forested land.

  3. Is the purple tree law still in effect in Texas?

  4. It’s a lot easier if you simply follow Louisiana law, deadly force may be used to prevent death or grave bodily harm. It’s the old biblical eye for an eye. You will never convince a jury that you needed to shoot someone to keep them from stealing grandma’s oil lamp.

  5. If in my mind, my case justified deadly force as described in the article, I would likely then choose a bench trial. No jury. Of course the call to US LAW SHIELD would take place almost immediately (after 911).

  6. Can you assume that a person who breaks into you home at night, when occupants of your family are within the home, is there to kill all within?

    • Under Texas law, you do not need to assume anything about a person’s motives who breaks into your occupied habitation. Texas law gives you the legal presumption that deadly force against a home invader is reasonable. That person’s motives do not change this. For example a person who breaks into an occupied house to only steal property is treated the same way under the law as a person who breaks in for the purpose of committing a murder or sexual assault.

  7. What happens if you shoot a thief breaking your car windows with non lethal bean bags, rubber bullets or tazer?

  8. I’ve been wondering about the legality of producing a firearm immediately after a mugging and demanding my property returned. I feel like there might not be a good opportunity to draw before that if he gets the drop on me. Also, if he was armed with a gun but now has my property and turns to leave is it acceptable to just shoot him since he is also armed?

  9. I am from California, not Texas.
    Recently, many neighbors homes got burglarized.
    We live in a relatively nice neighborhood too.
    Sheriff told us these days, burglars learned not to carry any weapons, so in care they were caught, their crimes will not be treated as a felony, they would be simply booked, then released.
    They they would go out and commit their next crime.
    It;s very frustrating.
    Like it just happened not too long ago, a neighbor told us someone just knocked on their door, and ran away. Probably trying to see if someone is home,……….
    So what can one do?
    I disagree with using bean bags & rubber bullets……
    In my mind, I never know if the bad guys are carrying any weapons. If I show my weapon, then if the bad guys have weapons, they probably will shoot me.
    Bean bags & rubber bullets vs bad guy’s real bullets means I will lose…….. unless the home owner has 2 weapons………one with bean bags, another one with real bullets…….
    If the home owner shows his weapon weapon, home owner better be ready to pull the trigger.
    Correct?
    What about firing warning shots?
    Will that be treated as deadly force?

  10. Warning shots are out. If you are justified to use deadly force do so. If not don’t.

  11. Has anyone been convicted of using deadly force to protect property in TX when they seem to meet the law requirements or is there any case law that has basically nullified the law? Also wondering if there are similar laws allowing deadly force to protect property in FL?

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