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Texas Assault and Battery

©2014 Mark Courtois

There are two elements of assault and battery in Texas: 1) intentionally, knowingly, or recklessly; and 2) causing bodily injury to another, threatening another with imminent bodily injury, or causing physical contact with another when you know or should reasonably believe that the other will regard the contact as offensive or provocative. (1)

NOT DEFENSES.

Things that are not defenses to an assault and battery claim are: 1) mistakenly hurt the wrong person; (2) 2) didn't mean to cause that type of harm; (3) and 3) no actual bodily injury caused (4) - all that is required is invasion of anything closely related to the plaintiff's body. (5)

DEFENSES.

1. Self-Defense. A person is justified in using force against another when and to the degree the person reasonably believes the force is immediately necessary to protect himself or herself against the other's use or attempted use of unlawful force. (6) The person's belief that the force was immediately necessary is presumed to be reasonable under certain circumstances if the defendant did not provoke the other against whom the force was used, and the person was not engaged in criminal activity other than a class C misdemeanor. (7) First it is presumed reasonable if the person knew or had reason to believe that the other person against whom the force was used had unlawfully and with force entered, or was attempting to enter unlawfully and with force, the peron's occupied habitation, vehicle, or place of business or employment. Second, it is presumed reasonable if the other person unlawfully and with force removed, or was attempting to remove unlawfully and with force, the defendant from the actor's habitation, vehicle, or place of business or employment. Finally, it may be presumed reasonable if the other person was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery. (8)

The use of force against another is not justified: 1) in response to verbal provocation alone; 2) to resist an arrest or search that the person knows is being made by a peace officer, or by a person acting in a peace officer's presence and at his direction, even though the arrest or search is unlawful; 3) if the person consented to the exact force used or attempted by the other; 4) if the person provoked the other's use or attempted use of unlawful force, unless: a) the person abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and b) the other person nevertheless continues or attempts to use unlawful force against the person; or 5) if the person sought an explanation from or discussion with the other person concerning that person's differences with the other person while the person was: a) unlawfully carrying a weapon; or (b) unlawfully possessing or transporting a weapon. (9)

The use of force to resist an arrest or search is justified: 1) if, before the person offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and 2) when and to the degree the person reasonably believes the force is immediately necessary to protect himself against the peace officer's (or other person's) use or attempted use of greater force than necessary.

2.  Retreat Not Required.   A person who has a right to be present at the location where the force is used, who has not provoked the other person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using self-defense force. (10)

3.  Use of Deadly Force.  A person is justified in using deadly force against another person: 1) if the person would be justified in using force against the other person as discussed above, and 2) when and to the degree the person reasonably believes deadly force is immediately necessary to protect the person against the other person's use or attempted use of unlawful deadly force; or to prevent the other person's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery. (11) The same presumptions of reasonableness apply (12) as does the rule not requiring a person to retreat if the person has a right to be present at the location where the force is used and is not engaged in criminal activity. (13)

4.  Defense of Third Person.  A person is justified in using force or deadly force against another person to protect a third person if: 1) under the circumstances as the person reasonably believes them to be, the person would be justified to use force or deadly force to protect himself or herself against the unlawful force or unlawful deadly force he/she reasonably believes to be threatening the third person he/she seeks to protect; and 2) the person reasonably believes that his/her intervention is immediately necessary to protect the third person. (14)

5.  Preventing Another From Committing Suicide.  A person is justified in using force, but not deadly force, against another when and to the degree he/she reasonably believes the force is immediately necessary to prevent the other person from committing suicide or inflicting serious bodily injury to himself. (15) A defendant is justified in using both force and deadly force against another when and to the degree he/she reasonably believes the force or deadly force is immediately necessary to preserve the other's life in an emergency. (16)

6.  Protection of One's Own Property.   A person in lawful possession of land or tangible, movable property is justified in using force against another person when and to the degree the person reasonably believes the force is immediately necessary to prevent or terminate the other person's trespass on the land or unlawful interference with the property. (17) A person unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other when and to the degree the person reasonably believes the force is immediately necessary to reenter the land or recover the property if the person uses the force immediately or in fresh pursuit after the dispossession and either 1) the person reasonably believes the other person had no claim of right when he dispossessed the person; or 2) the other person accomplished the dispossession by using force, threat, or fraud against the person. (18)

6.  Deadly Force to Protect Property.  A person is justified in using deadly force against another person to protect land or tangible, movable property if he/she would be justified in using force against the other in protection of his own property, and when and to the degree he reasonably believes the deadly force is immediately necessary to prevent the other person's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property. To be justified, the person must also reasonably believe that the land or property cannot be protected or recovered by any other means; or the use of force other than deadly force to protect or recover the land or property would expose the person or another to a substantial risk of death or serious bodily injury. (19)

7.  Protection of a Third Person's Property.   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 person would be justified in using force or deadly force to protect his own land or property and: 1) the defendant reasonably believes the unlawful interference constitutes attempted or consummated theft of or criminal mischief to the tangible, movable property; or 2) the defendant reasonably believes that the third person has requested his protection of the land or property; he 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 defendant's spouse, parent, or child, resides with the defendant, or is under the defendant's care. (20)

8.  Use of Device to Protect Property.  The justification afforded by the Penal Code regarding the use of force as to property, not deadly force, applies to the use of a device to protect land or tangible, movable property if: 1) the device is not designed to cause, or known by the actor to create a substantial risk of causing, death or serious bodily injury; and 2) use of the device is reasonable under all the circumstances as the actor reasonably believes them to be when he installs the device. (21)

9.  Immunity from Civil Liability.  A person who uses force or deadly force that is justified under Chapter 9 of the Texas Penal Code is immune from civil liability for personal injury or death that results from the person's use of force or deadly force. (22)


NOTES
1. See Tex. Penal Code Ann. § 22.01(a) . The definition of assault is the same whether it is used pursuant to criminal prosecution or civil suit for damages. Morgan v. City of Alvin, 175 S.W.3d 408, 418 (Tex. App.-Houston [1 st Dist.] 2004, no pet.).
2. See Morrow v. Flores, 225 S.W.2d 621, 624 (Tex. Civ. App.--Fort Worth 1949, writ ref'd n.r.e.).
3. See Bennight v. Western Auto Supply Co., 670 S.W.2d 373, 377 (Tex. App.--Austin 1984, writ ref'd n.r.e.)
4. See Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627, 629 (Tex. 1967) (Texas Supreme Court adopts standard from Restatement of Torts, Second §18, that it is not necessary that plaintiff's body be actually disturbed; it is offensive nature of the contact that makes the contact actionable) Actual injury or damages is not an element of assault by offensive contact. See TEX. PEN. CODE ANN. § 22.01(a)(3); Wal-Mart Stores, Inc. v. Odem, 929 S.W.2d 513, 528 (Tex. App.-San Antonio 1996, writ denied) (recognizing that plaintiff may recover for mental suffering apart from actual physical injury).
5. See id.
6. See Tex. Penal Code Ann. § 9.31(a) .
7. See id.
8. See id.
9. See id.
10. See id at § 9.31(c).
11. See id at § 9.32.
12. See id at § 9.32(b).
13. See id at § 9.32(c).
14. See id at § 9.33.
15. See id at § 9.34(a).
16. See id at § 9.34(b).
17. See id at § 9.41(a).
18. See id at § 9.41(b).
19. See id at § 9.42.
20. See id at § 9.43.
21. See id at § 9.44.
22. Tex. Civ. Prac & Rem Code. § 83.001(Vernon 2007).

©2014 Mark Courtois