Criminal responsibility vs. civil liability

[mloamiller]

I came across what seems to be a contradiction in Texas statues regarding criminal responsibility vs. civil liability in the event you use deadly force to defend yourself or someone else.

PENAL CODE
TITLE 2. GENERAL PRINCIPLES OF CRIMINAL RESPONSIBILITY
CHAPTER 9. JUSTIFICATION EXCLUDING CRIMINAL RESPONSIBILITY
Sec. 9.02. JUSTIFICATION AS A DEFENSE. It is a defense to prosecution that the conduct in question is justified under this chapter.
Sec. 9.06. CIVIL REMEDIES UNAFFECTED.
The fact that conduct is justified under this chapter does not abolish or impair any remedy for the conduct that is available in a civil suit.
SUBCHAPTER C. PROTECTION OF PERSONS
Sec. 9.31. SELF-DEFENSE. (a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force.
(Following chapters contain similar verbiage related to protection of property and other people.)

CIVIL PRACTICE AND REMEDIES CODE
TITLE 4. LIABILITY IN TORT
CHAPTER 83. USE OF FORCE OR DEADLY FORCE
Sec. 83.001. CIVIL IMMUNITY. A defendant who uses force or deadly force that is justified under Chapter 9, Penal Code, is immune from civil liability for personal injury or death that results from the defendant's use of force or deadly force, as applicable.

At first glance (at least to a non-lawyer) those seem to contradict each other. However, I found another article that explained the difference. It's from another non-lawyer, but it makes sense - the Penal Code doesn't prohibit someone from suing you in a civil court, but the Civil Code says you would be (should be?) immune from liability.

http://www.southlakechl.com/2013/02/24/ ... nd-83-001/

Assuming section 9.02 of the Penal Code ("defense from prosecution") only refers to criminal prosecution, it seems that you could still be sued in civil court for defending yourself with deadly force. Does 83.001 in the Civil Code mean a judge would (should) immediately throw out any such suit, or does it just mean you can still be sued and incur legal expenses to defend yourself, but you can't be subject to fines/damages?

[Beiruty]

They can sue but you are immune if you used force or deadly force in justified manner.

[Charles L. Cotton]

I came across what seems to be a contradiction in Texas statues regarding criminal responsibility vs. civil liability in the event you use deadly force to defend yourself or someone else.

PENAL CODE
TITLE 2. GENERAL PRINCIPLES OF CRIMINAL RESPONSIBILITY
CHAPTER 9. JUSTIFICATION EXCLUDING CRIMINAL RESPONSIBILITY
Sec. 9.02. JUSTIFICATION AS A DEFENSE. It is a defense to prosecution that the conduct in question is justified under this chapter.
Sec. 9.06. CIVIL REMEDIES UNAFFECTED.
The fact that conduct is justified under this chapter does not abolish or impair any remedy for the conduct that is available in a civil suit.
SUBCHAPTER C. PROTECTION OF PERSONS
Sec. 9.31. SELF-DEFENSE. (a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force.
(Following chapters contain similar verbiage related to protection of property and other people.)

CIVIL PRACTICE AND REMEDIES CODE
TITLE 4. LIABILITY IN TORT
CHAPTER 83. USE OF FORCE OR DEADLY FORCE
Sec. 83.001. CIVIL IMMUNITY. A defendant who uses force or deadly force that is justified under Chapter 9, Penal Code, is immune from civil liability for personal injury or death that results from the defendant's use of force or deadly force, as applicable.

At first glance (at least to a non-lawyer) those seem to contradict each other. However, I found another article that explained the difference. It's from another non-lawyer, but it makes sense - the Penal Code doesn't prohibit someone from suing you in a civil court, but the Civil Code says you would be (should be?) immune from liability.

http://www.southlakechl.com/2013/02/24/ ... nd-83-001/

Assuming section 9.02 of the Penal Code ("defense from prosecution") only refers to criminal prosecution, it seems that you could still be sued in civil court for defending yourself with deadly force. Does 83.001 in the Civil Code mean a judge would (should) immediately throw out any such suit, or does it just mean you can still be sued and incur legal expenses to defend yourself, but you can't be subject to fines/damages?

You are correct, except that the judge is not required to dismiss the case immediately upon motion by the defendant. The intent behind that part of SB378 was/is to allow a defendant to file a Motion for Summary Judgment supported by some evidence that the use of force was justified. This evidence could be a no-bill from a Grand Jury, a letter/notice from a prosecutor of no intent to prosecute, expiration of the criminal statute of limitations (unlikely before the civil statute of limitations expired), or an acquittal by a jury. I have had one of the best Harris County District Court Judges in my CHL class and he warned that a dismissal may well not be that easy to obtain, because of the lack of conclusive evidence for a Motion for Summary Judgment. (With an MSJ, the evidence must be so strong that reasonable minds cannot differ, in order to grant the motion.) Consideration was given to listing specific events as being "proof as a matter of law," but the fear was that doing so could put some honest people in a position where relying upon the "immunity from civil liability" would be very difficult. This could occur if no action on the case was taken, that is no GJ submission, no letter/notice from the DA, etc.

Chas.

[Oldgringo]

Hence, even the most righteous shoot can prove to be extremely expensive.

[lildave40]

So how do you protect yourself if the criminals have more rights than a legal tax payer?

[mloamiller]

You are correct, except that the judge is not required to dismiss the case immediately upon motion by the defendant. The intent behind that part of SB378 was/is to allow a defendant to file a Motion for Summary Judgment supported by some evidence that the use of force was justified. This evidence could be a no-bill from a Grand Jury, a letter/notice from a prosecutor of no intent to prosecute, expiration of the criminal statute of limitations (unlikely before the civil statute of limitations expired), or an acquittal by a jury. I have had one of the best Harris County District Court Judges in my CHL class and he warned that a dismissal may well not be that easy to obtain, because of the lack of conclusive evidence for a Motion for Summary Judgment. (With an MSJ, the evidence must be so strong that reasonable minds cannot differ, in order to grant the motion.) Consideration was given to listing specific events as being "proof as a matter of law," but the fear was that doing so could put some honest people in a position where relying upon the "immunity from civil liability" would be very difficult. This could occur if no action on the case was taken, that is no GJ submission, no letter/notice from the DA, etc.

Chas.

Are you saying that even if you are not charged with a crime (or charged but found Not Guilty), you may still have to defend yourself in a civil court and prove you were justified to use deadly force, before the "immune from liability" kicks in? And on top of that, the civil court may still find that you weren't justified, so you could be found liable for damages?

[oohrah]

That's what happened to OJ Simpson.

[Charles L. Cotton]

You are correct, except that the judge is not required to dismiss the case immediately upon motion by the defendant. The intent behind that part of SB378 was/is to allow a defendant to file a Motion for Summary Judgment supported by some evidence that the use of force was justified. This evidence could be a no-bill from a Grand Jury, a letter/notice from a prosecutor of no intent to prosecute, expiration of the criminal statute of limitations (unlikely before the civil statute of limitations expired), or an acquittal by a jury. I have had one of the best Harris County District Court Judges in my CHL class and he warned that a dismissal may well not be that easy to obtain, because of the lack of conclusive evidence for a Motion for Summary Judgment. (With an MSJ, the evidence must be so strong that reasonable minds cannot differ, in order to grant the motion.) Consideration was given to listing specific events as being "proof as a matter of law," but the fear was that doing so could put some honest people in a position where relying upon the "immunity from civil liability" would be very difficult. This could occur if no action on the case was taken, that is no GJ submission, no letter/notice from the DA, etc.

Chas.

Are you saying that even if you are not charged with a crime (or charged but found Not Guilty), you may still have to defend yourself in a civil court and prove you were justified to use deadly force, before the "immune from liability" kicks in? And on top of that, the civil court may still find that you weren't justified, so you could be found liable for damages?

The chances of being sued in a righteous shooting are almost nonexistent. Yes, it happens on very rare occasions. If you are sued, you definitely need to defend yourself, but you still can use the "immunity from liability" defense. You must have some evidence in the civil court to prove your actions were justified and that's where it can get problematic if the case isn't sent to a GJ. That too is rare these days. Some folks thought SB378 meant that you cannot even be sued, but that would be unconstitutional because it would deny a person access to the Texas courts.

Chas.

[b322da]

So how do you protect yourself if the criminals have more rights than a legal tax payer?

A tinfoil hat should work. This is obviously another conspiracy against us.

Just kidding.

It is not an easy task to fashion a framework viewed with favor by all sides when there are conflicting interests. IMHO the legislature, with help from expert advisers, tried its best here, and with only the rarest of exceptions, if any, I believe it will work fairly.

Jim