use of deadly force against animals texas

Deadly Force Against Animals in Texas

The State of Texas does not have a general self-defense, use of force, or defense of others statute pertaining to animals. However, Texas does have statutes governing conduct against specific “dangerous wild animals” and justifications for protection of domestic animals, crops, and/or livestock. But, Texas does not have an explicit statute that justifies the use of force and/or deadly force to protect yourself or others against animal attacks.

So, for example, if you are walking through your neighborhood and a dog attacks you, there isn’t any specific provision of the Texas Penal Code that will protect, or give you justification, for your use of deadly force. Instead, you will be forced to rely on “justification by necessity,” a general defense that gives no presumption that you acted reasonably and instruction to the jury that they must first infer you were reasonable.

 

Justification by Necessity

According to Section 9.22 of the Texas Penal Code,

“Conduct is justified if:

  1. the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;
  2. the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and
  3. a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.”

Breaking this down in the context of a person shooting an animal in response to an animal attack, a person may be legally justified in using force and/or deadly force against an attacking animal if that person has a reasonable belief that force and/or deadly force is immediately necessary to avoid imminent harm by the attacking animal. However, the harm in which the person is trying to avoid, by breaking the law, must be evaluated by a desirability and urgency test under Section 9.22 using a reasonable person standard.  [For a refresher on force and/or deadly force, see our post on force and deadly force.]

Going back to our example of a person walking through their neighborhood and shooting an attacking dog, the person, let’s call him Joe, could be charged with cruelty to animals and/or discharging a firearms within city limits. However, there is no specific statute that Joe could use to justify their use of deadly force as self-defense, like in person-on-person attacks. Using the general defense of necessity, Joe will have to meet the requirements of Section 9.22.

The first question we need to ask is whether Joe found it “reasonably” necessary to draw and fire his gun to avoid the imminent harm of being bit by the attacking dog. Since reasonableness is an issue for a jury to decide, Joe must convince a jury that what he did was indeed reasonable. However, a prosecutor will be free to argue that Joe should have retreated, that he used too much force, that the perceived threat of the dog biting him was not reasonable. Either way, Joe has to prove he was reasonable and not afforded the presumption of reasonableness under Section 9 of the Texas Penal Code, such as the Castle Doctrine, “no duty to retreat/stand your ground,” and other enumerated crimes in which a person is afforded the presumption of reasonableness.

Even if Joe convinces the jury that he acted reasonable, he still must pass the “desirability and urgency test” under the standard of reasonableness. Joe would need to argue that the desirability of a person (human) not being bit by a dog while simply walking through his neighborhood outweighs the fact that he broke the law (cruelty to animals and/or negligent discharge of a firearm within the city limits). Once again, since there is no presumption of reasonableness, the prosecutor will be free to second guess every action Joe made, bring in witnesses to refute Joe’s account, and try to persuade the jury a second time that Joe did not act reasonably.

Finally, if we look to extremes of the reasonableness standard, which do you think would be easier to convince a jury that you acted reasonable?

  1. Using deadly force against three Pitbulls that attacked you while walking through your neighborhood,
  2. Using deadly force against a German Shepherd digging in your flowerbed; or
  3. Using force against a Chihuahua that allegedly bit a child by throwing the dog in a trashcan on a hot summer day and allowing the dog to die (real case out of Central Texas)

 

Dogs and Coyotes Attacking Domestic Animals or Livestock

According to Section 822.013 of the Texas Health and Safety Code, “a dog or coyote that is attacking, is about to attack, or has recently attacked livestock, domestic animals, or fowls may be killed by any person witnessing the attack, or the attacked animal’s owner or a person acting on behalf of the owner if the owner or person has knowledge of the attack.”  First, it should be noted that this statute has been approved by the Texas Court of Criminal Appeals as a defense to the crime of animal cruelty in Chase v. State, 448 S.W.3d 6 (Tex. Crim. App. 2014).

Second, it is important to note that this statute is limited specifically to dog or coyote attacks on other animals, not people.  However, people are justified in shooting a dog or coyote that is, about to, or has recently attacked other animals.  Notably, this statute was applied when former Texas Governor Rick Perry killed a coyote attacking his dog with his while out jogging in 2010.  More notably was Ruger’s attempt to capitalize on the occasion and release the Ruger LCP “Coyote Special” engraved with a coyote howling at the moon and a Texas Star.  Long live capitalism and a good story.

 

Justification for Protection of Crops and Livestock

According to Texas Penal Code Section 42.092(e)(1), “it is a defense to prosecution under Subsection (b)(2) [killing, administering poison, or causing serious bodily injury to an animal] or (b)(6) [causing bodily injury to an animal] that the animal was discovered on the person’s property in the act of or after injuring or killing the person’s livestock animals or damaging the person’s crops and that the person killed or injured the animal at the time of this discovery.”  Though the statute doesn’t specifically detail what “after injuring or killing..or damaging” means, it can be inferred from other portions of the Texas Penal Code that this means immediately or moments after you catch the animal in the act of harming livestock or crops.  Essentially, this statute provides a protection (essentially, an affirmative authorization) for a person who kills a non-livestock animal (no specific species) that is attacking or immediately after attacking livestock or causing damage to crops.

For example, let’s say that Joe is feeding his goats when he notices that a pair of dogs are attacking some of the goats.  Ted uses his .308 to kill one of the dogs, while the other runs away.

In this example, Joe clearly intended to kill the dogs because they were in the process of attacking his goats.  Despite the fact that the dogs were likely domesticated, Joe will be afforded protection under Section 42.092(e)(1) of the Texas Penal Code because he caught an animal in the process of killing his livestock (goats).  Thus, Joe was justified in his use of deadly force against the dogs.

 

Justification for Illegal Collection of Fur-Bearing Animals

In Texas, fur-bearing pests such as otters, beavers, ring-tailed cats, badgers, raccoons, skunks, muskrats, foxes, opossums, and nutria are commonly found on private property.  These fur-bearing pests tend to destroy property and crops while attempting to build habitats.  As a result, the Texas Parks and Wildlife Code has a statute addressing recourse if you run into issues with these animals on your private property.  Specifically, Section 71.004 of the Texas Parks and Wildlife Code states, “This chapter does not prohibit a landowner or his agent from taking a fur-bearing animal causing depredation on that person’s land.  No person may possess a fur-bearing animal taken for depredation purposes except as authorized by proclamation of the commission”

First, we need to determine what a “fur-bearing animal” is according to the Texas Parks and Wildlife Code.  Fortunately, Section 71.001(1) indicates that a “fur-bearing animal” means “wild beaver, otter, mink, ring-tailed cat, badger, skunk, raccoon, muskrat, opossum, fox, or nutria.” Second, we need to define what a “taking” is.  According to Section 71.001(8), to “take” means “the act of snaring, trapping, shooting, killing, or capturing by any means and includes an attempt to take.”  Finally, we need to interpret the last sentence of Section 71.004.  This sentence tends to indicate that if you kill a fur-bearing animal that is destroying your private property or crops, the statute does not allow you to keep or use its fur, unless specifically authorized by proclamation of the commission.  So, unless you get the explicit permission of the Texas Parks and Wildlife Commission, you can’t keep the fur of a fur-bearing animal you killed for destroying your crops.

 

Defense to Cruelty to Animals – Dangerous Wild Animals

Let’s put this in perspective a moment, Texas has a specific statute (Tex. Penal Code Section 42.092(d)(1)) that protects you from prosecution (an affirmative authorization) if you use deadly force against a lion or tiger, but no statute exists to protect you prosecution if you kill an attacking domesticated dog in your neighborhood.

Specifically, Texas Penal Code Section 42.092(d)(1) states that, “It is a defense to prosecution under this section that the actor had a reasonable fear of bodily injury to the actor or to another person by a dangerous wild animal as defined by Section 822.101, Health and Safety Code.

Looking to Section 822.101(4) of the Texas Health and Safety Code, “dangerous wild animals” include a: lion, tiger, ocelot, cougar, leopard, cheetah, jaguar, bobcats, lynx, serval, hyena, bears, coyote, jackal, baboon, chimpanzee, orangutan, gorilla, or any hybrid of one of the animals listed in this section.  If an animal is not listed in this section, it is not covered under the defense to prosecution in Section 42.092(d)(1) of the Texas Penal Code.  It’s important to note that the list in Section 822.101(4) of the Texas Health and Safety Code is the only list of animals in which a specific justification (defense to prosecution) of self-defense of a person being attacked by an animal is statutorily authorized under Texas law.

Also, the Texas legislature has specifically addressed self-defense against the list of animals in Section 822.101(4) of the Texas Health and Safety Code in conjunction with the crime of disorderly conduct by discharging a firearm in a public place or across a public roadway.  Specifically, Section 42.01(e) states, “It is a defense to prosecution for an offense under Subsection (a)(7) [discharges a firearm in a public place other than a public road or a sport shooting range] or (9) [discharges a firearm on or across a public road] that the person who discharged the firearm had a reasonable fear of bodily injury to the person or to another by a dangerous wild animal as defined by Section 822.101, Health and Safety Code.”  So, when it comes to “dangerous wild animals,” Texans have defenses to prosecution for self-defense (likely a charge of animal cruelty) and public discharge of a firearm if they use deadly force when in immediate fear of attack by one of the aforementioned “dangerous wild animals” listed in the Health and Safety Code.

Many ask why this specific list of animals is found in the Health and Safety Code.  The entire purpose of Chapter 822 governs the ownership of wild animals for exhibition, entertainment, and ultimately, profit.  The animals listed are not traditionally considered domesticated animals, but are often held in captivity, like zoos, circuses, or safari parks (anyone remember Texas Safari in Clifton?).

Theoretically, if you’re walking down the street while the circus is in town and you’re accosted by a hungry tiger who escaped the circus, you’re free to shoot if threatened without fear of prosecution.  Hopefully, you’re carrying a large enough round to dispatch said tiger before becoming a mid-day snack.  But, remember, elephants aren’t on the list, so it’s best to just move aside and run for the hills from a rampaging elephant if you don’t have a large caliber rife and don’t feel like arguing the defense of necessity if you’re charged with animal cruelty.


Helping Texas Gun Owners

Since we opened our office, one of our primary goals was to better serve fellow gun owners and Second Amendment-supporters throughout the state of Texas.  We’re proud to say we’ve formed LLCs for Federal Firearms License (FFL) dealers, drafted estate planning documents for folks with small and significant gun collections (including NFA items), drafted NFA “Gun Trusts,” helped gun ranges with real estate issues and assess liability, and probated estates with small and large gun collections.

We’ve talked around the state regarding current gun laws, the intersection of the 4th Amendment and gun laws, civil liability of gun owners, and how to decipher provisions of the Texas Penal Code regarding gun laws.  We’ve also helped interpret new legislation (2017 was interesting), assisted churches with forming Church Security Teams, and tried to answer anything we can legally pertaining to firearms.

Basically, we’re here to be of service to the firearms community in Texas.  If you need any assistance with business formations, estate planning, NFA Trusts, real estate law, or probating an estate, our knowledgeable gun-owning attorneys would be happy to speak with you, regardless of where you are in the state.  We have several services that we offer state-wide and would be happy to speak with you about any other firearms-related matters we could assist with.

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