Texas: Can I Use Force Against Someone Burglarizing My Car?

 

 

Member Ambassador Sherry Hale:

Welcome Members and Fellow Gun Owners. In the last Member’s Voice video, our member Tyler witnessed a criminal breaking into his car.

Tyler drew his gun, and the bad guys ran away.

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The legal questions started pouring in, and Members, you wanted to know your legal rights in your state. So here’s your Texas Law Shield Independent Program Attorney Emily Taylor to give you insight on what the law says.

Texas Law Shield Independent Program Attorney Emily Taylor, Walker & Taylor Law Firm, Houston:

Today, we’re going to talk about what you can do if someone is breaking into your vehicle while you’re at your house. Well, first of all, what is this crime even called? It’s called burglary of a motor vehicle.

Now, that’s what makes this discussion interesting, because as you may already know, you can have the right to respond with deadly force when someone is committing a burglary against your property. The problem here is that the statute only reads burglary, and there are multiple different kinds of burglary in the State of Texas.

Things like burglary of the habitation, burglary of a building, burglary of a coin-operated machine, and, of course, our topic today, burglary of a motor vehicle. Because the statute doesn’t specify which kind of burglary you can respond to with deadly force, we’re kind of at a loss legally.

The problem here is that there’s no controlling case law that says that you are allowed to use deadly force against a burglar who’s breaking into your car. I know you’re probably thinking I’ve seen it on the news. I’ve heard anecdotes about people who shoot at someone who’s burglarizing their car and that shooter doesn’t get arrested. Nothing terrible happens to them; they’re allowed to go on about their lives.

I’ve heard those anecdotes, too; the problem is that because we don’t have case law that controls if you use deadly force against someone who’s burglarizing your vehicle, you could be put in the position of being the test case for whether or not that behavior is allowed under Texas law.

If someone’s breaking into your vehicle in the nighttime, the law becomes much more clear. Texas statutes say that you can, if you act reasonably, use deadly force against someone committing a theft during the nighttime.

The person who’s breaking into your vehicle is doing so presumably to commit a theft of what’s inside, so if you witness this activity in the night time, so long as you’re acting reasonably, as determined by potentially a judge or a jury, you can have the right in Texas to use deadly force against that person.

Day or night, you always have the right to use force against the person who’s committing the burglary of a motor vehicle. Use of force can look like a lot of different things, could look like anything from verbal commands to stop to actually physically going over and stopping the person with your hands, engaging them physically with your hands.

It could look like everything up into pointing a firearm at someone, so the question becomes, could you point your gun at someone and hold them at gunpoint until the police arrived because they’ve been burglarizing your motor vehicle?

Well, that would be a use of force, and a use of force can be justified in this instance. But keep in mind, your use of force has to be reasonable, it has to be immediately necessary, and it should be proportional to the amount of force that the person is perpetrating against you.

So while holding someone at gunpoint is potentially something that you’re allowed to do when they’re burglarizing your motor vehicle, keep in mind that the ultimate authority on whether or not that’s allowed is potentially a jury at trial, or a judge.

Educating you is the cornerstone of Texas Law Shield. Thank you for being a part of our family.

If you are a Member and and have more detailed questions about when you can and cannot shoot in defense of property, please call the non-emergency number at (281) 668-9957, and Independent Program Attorneys will be happy to explain your options.

 

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Comment section

61 comments on “Texas: Can I Use Force Against Someone Burglarizing My Car?

  1. Good to know when it comes to ” shots fired ” I would think it would be a different subject, but I’m not a lawyer. Proper common sense, and a calm mind!

  2. I hear alot here in Texas if someone trying to break in your house and you shot the person while the burglar is still on the outside of the house that the home owner will get in trouble but if the burglar actually broke in and steps in the house it’s a different story. So my question is what is the law on that.

    • Hi Bobby. Thanks for your question! Please see the below response from one of our Independent Program Attorneys here in Texas.

      “Texas Penal Code Section 9.32 states that a person is legally justified in using deadly force if they reasonably believe that someone is attempting to unlawfully and forcefully enter or has unlawfully and forcefully entered their occupied habitation. In a home invasion situation, a person is legally presumed to have a reasonable belief that deadly force was immediately necessary. Obviously, it is easier to demonstrate that a person was unlawfully and forcefully entering your house if they have already breached the entrance. If you use deadly force against someone who you reasonably believe is attempting to unlawfully and forcefully enter the house there should be evidence to support that belief such as using tools to enter, attempting to enter through a window, or attempting to knock or kick down a door, etc.”

  3. So, I potentially know if I can or cannot 🤔Obviously I’m kidding and am no better off than before reading this blog. I think I’ll take my chances and let them steal from my POV.

  4. Thanks so much!

  5. If I walk upon someone breaking into my car in the afternoon in the mall parking lot and I draw my weapon and he starts to run away, should I shoot?
    If I see that he is running away with some of my property in his hand, can I shoot? If he runs and I can’t SEE any of my property in his hand, can I shoot?
    Thanks.

    • Hi Shawn. Thanks for your question! Please see the below response from one of our Independent Program Attorneys here in Texas.

      “Texas law does not allow for the use of deadly force when a person is running away from a burglary if they are not carrying any property. Texas laws does allow for the use of deadly force to retrieve stolen property from a person who is fleeing from a burglary, but only if the person has a reasonable belief that the use of deadly force is immediately necessary and that they reasonably believe that the property could not be recovered through any other means or that the use of less than deadly force to recover the property would expose them to a substantial risk of death or serious bodily injury. It should be noted that deadly force during the daytime can be justified for the crime of burglary, but never the crime of theft during the daytime.”

  6. What if you normally keep a gun in your car and you fear that the burglar has it?

    • Hi Scott. Thanks for your question! Please see the below response from one of our Independent Program Attorneys here in Texas.

      “If a person reasonably believes that a burglar has gained access to a firearm that was in their vehicle this will certainly be an important factor in arguing that their use of deadly force was based upon a reasonable belief that deadly force was necessary. “

  7. I just watched the video on burglarizing cars. I saw both the Texas version and the Georgia version. While both were well done and provided good information I believe the Georgia version was better. The reason why I feel that version is better than the Texas version is because time was spent on calling police if you see someone breaking into your car, not engaging with your weapon or confronting someone at all. This was missing from the Texas version.
    In my opinion, each of these videos should emphasize, at some point, that calling law enforcement is an important option that should be considered.
    This may help some people be more reasonable and responsible if a situation unfolds requiring them to act.

  8. I see so many grey areas that it makes me realize that you almost have to be seriously injured before you finally make the decision that this isn’t going well, I hope I’m still able to get to my weapon and attempt to defend myself. I am 61 years old and I have no intention to physically defend myself against an attacker(s). I can not move, run, swing my arms or lift my legs like I used to.

  9. What are the options if the person you are holding at gun point refuses your commands or decides to make a run for it to get away.

    Obviously, they are no longer a deadly threat to you, and lets assume that any items they may have tried to steal were thrown or dropper.

    Is it reasonable to shoot them as they flee since they would be long gone before police arrive? Otherwise, what incentive or justification is there in holding a person at gunpoint.

    • Hi Stephan. Thanks for your question! Please see the response below from one of our Independent Program Attorneys here in Texas.

      “Texas law does not allow for the use of deadly force when a person is running away from a burglary if they are not carrying any property. Texas laws does allow for the use of deadly force to retrieve stolen property from a person who is fleeing from a burglary, but only if the person has a reasonable belief that the use of deadly force is immediately necessary and that they reasonably believe that the property could not be recovered through any other means or that the use of less than deadly force to recover the property would expose them to a substantial risk of death or serious bodily injury”

  10. I’m amazed that for a state as large as Texas with as many gun owners that live here and with as many auto burglaries that happen every year that there is no precedent for situations such as this.

    • The vast majority of burglaries, particularly motor vehicle burglaries, are discovered well after the burglar has left the scene. Even if there are witnesses, our police tell us most MV burglaries involve the burglar opening an unlocked door, picking up something in plain sight, and walking away, which doesn’t look like a “burglary.”

    • The fact that there is no controlling legal precedent (shades of Al Gore?) in Texas suggests to me that no DA was willing to proceed to a grand jury indictment and trial. Which further suggests the DAs believe such a case is a trial they would lose on a pretrial motion to dismiss, or a jury vote for acquittal, or an appellate reversal if a conviction was obtained.

  11. Your vehicle would have to contain something of extreme value, and why would you have it left along in the vehicle? Texas has different laws for daylight and dark situations, however, for the most part just ask yourself, is there anything in my vehicle that is worth a human life ?

  12. I can summarize your opinion with these two words, “it depends…”

    Yes, we are members and are current on billing. The issue of what kind of burglary is occurring relative to the explicit wording of the penal code is always open to interpretation in my non-legal opinion.

    Suppose we are at a 7-11 on the i35 on the way to Dallas and stop in for a Pepsi and chips. We come out to find someone ransacking our car. We have no idea whether that person is armed, is just a crook, or some kid on a dare from his friends. My choices include doing nothing, calling 911, going outside to tell the person to stop, or just shooting him in the back.

    The consequences from all of the above range from inconvenience and taking a small loss from theft which is insurance covered to some degree, or getting put into handcuffs and ruining my life in the name of the police covering their butt. After all, the real winners here is the justice system and the district attorney. And I get to pay off no matter the outcome.

    The issue of the applicable law is mired in protecting the system not the citizen. It is all about transfer of wealth, just consider asset forfeiture laws. But that is a different topic. Thanks for your opinion on whether it is legal to shoot a thief in one’s car. I still do not know the answer except “it depends.”

  13. This is a very good article. One thing I would have in my mind is what is in my vehicle in the first place? If it’s covered by Insurance anyway and the damage to the vehicle would be covered I am not sure I personally would chance taking a life over that. However if I had a firearm in the vehicle that changes the picture greatly and my position on that would be vastly different because then the burglar having obtained possession of my firearm could then become a deadly threat to me or my family.

  14. Ok, so more legal mumble jumbo, without telling us anything? Basically it is like all gun laws, you MUST use reasonable force when dealing with anyone, attempting to do anything unlawful. Reasonable force is NOT shooting them, unless they are doing, or attempting to do something that could harm you, or someone else. That is in regards to ALL cases of burglary, of any kind. Destruction of property does not constitute being of possible harm to a person, so shooting someone who is burglary a car, house, or other property is not a legal reason to shoot them. Use some coming sense folks.

  15. ITS DAYTIME, YOU HAVE CONFRONTED THE PERP, HAD TO DRAW YOUR WEAPON, DAMAGE HAS BEEN DONE TO YOUR VEHICLE, AND THE PERP TURNS AND WALKS OR RUNS AWAY AFTER BEING TOLD POLICE ON THE WAY.
    WHAT ARE YOUR OPTIONS , SHORT OF ALLOWING THE PERP TO ESCAPE?

    • Hi Roger. Thanks for your question! Please see the below response from one of our Independent Program Attorneys here in Texas.

      “You can use force to stop a burglar from escaping, but Texas law does not allow for the use of deadly force when a person is running away from a burglary if they are not carrying any property. Texas laws does allow for the use of deadly force to retrieve stolen property from a person who is fleeing from a burglary, but only if the person has a reasonable belief that the use of deadly force is immediately necessary and that they reasonably believe that the property could not be recovered through any other means or that the use of less than deadly force to recover the property would expose them to a substantial risk of death or serious bodily injury. If you use force to apprehend a car burglar, but then he decides to jump up and run away and he is no longer a threat to your safety, you cannot use deadly force to prevent him from escaping.”

  16. What if you are an elderly person who knows you have very little chance of stopping the burgler with your hands. I would not want to shoot someone
    for stealing property but if it involved my wallet with credit cards and other personal information I might fell different. I could spend years dealing with identy theft. I am also aware I could spend years dealing with having shot the burgler.
    What is a person suppose to do?

    • Hi Charles. Thanks for your question! Please see the below response from one of our Independent Program Attorneys in Texas.

      “Texas Penal Code 9.42 allows a person to use deadly force to prevent a burglary if the person reasonably believes that it is immediately necessary. If the burglar has stopped and is attempting to escape, Texas law does not allow for the use of deadly force when a person is running away from a burglary if they are not carrying any property. Texas law does allow for the use of deadly force to retrieve stolen property from a person who is fleeing from a burglary, but only if the person has a reasonable belief that the use of deadly force is immediately necessary and that they reasonably believe that the property could not be recovered through any other means or that the use of less than deadly force to recover the property would expose them to a substantial risk of death or serious bodily injury.”

  17. The best options is shouting get away from car. No lawyer, cop , judge involved. Plan 2 close front door and call your insurance company.

    • Doesn’t do any good to call your insurance company. You can way 10 hours and do so and the results will be the same. You can call the cops but the they will be gone by the time they get there. Best is to shoot a warning shot and scare the hell out of them. If they get shot….they deserve it.

  18. What about catching someone in the act of vandalizing the exterior of your home ( i.e., spray painting)?

    • Hi Glenn. Thanks for your question. Please see the below response from one of our Independent Program Attorneys here in Texas.

      “Texas Penal Code 9.41 allows a person to use force to defend their property against an act of vandalism, but you cannot use deadly force if it is vandalism (criminal mischief) in the daytime. Texas Penal Code 9.42 provides that a person may use deadly force against the crime of criminal mischief at night IF the person has a reasonable belief that the deadly force is immediately necessary and a reasonable belief that the property could not be protected by any other means. This leaves a lot of room for a prosecutor to argue and a jury to find that the actor’s belief WAS NOT reasonable under the circumstances present at the time deadly force was used. Texas LawShield will stand behind our members to defend them when the member believes that they have justifiably used force or deadly force. Texas LawShield has defended and will continue to defend members who have faced charges when the police and prosecutors believe that the member did not act reasonably.”

  19. Perhaps we need lawmakers to introduce legislation to specify the language to burglary of the different types. Crime against property or motor vehicles is not going down.

  20. New question: people openly carrying machetes in hand, after Sept 1, threat or no threat?
    Rules regarding “pointing” a gun are fairly clear…how does the same principle relate to machetes?

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