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Posted: **Tue Sep 06, 2011 8:36 pm**

http://www.kvue.com/news/Investigators- ... 39853.html" onclick="window.open(this.href);return false;
http://impactnews.com/leander-cedar-par ... an-qarsonq" onclick="window.open(this.href);return false;

The above links are not the first hint I've heard that arson could be a cause of some of these fires across the state (this one just hits close to home).

Without advocating any particular course of action or trying to start a panic or a witch hunt, I thought it might be helpful for all to review Chapter 9, subchapter D of the Texas Penal Code - Protection of Property below (with highlights).

It is very rare that I personally can envision a situation where I would utilize subchapter D and resort to deadly force to protect property. But if I see a firebug right now ...

Well, I pray no one else is idiotic or depraved enough to play with fire under these conditions.

SUBCHAPTER D. PROTECTION OF PROPERTY
Sec. 9.41. PROTECTION OF ONE'S OWN PROPERTY. (a) A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other's trespass on the land or unlawful interference with the property.

(b) 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 actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and:

(1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or

(2) the other accomplished the dispossession by using force, threat, or fraud against the actor.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 9.42. DEADLY FORCE TO PROTECT PROPERTY. A person is justified in using deadly force against another to protect land or tangible, movable property:

(1) if he would be justified in using force against the other under Section 9.41; and

(2) when and to the degree he reasonably believes the deadly force is immediately necessary:

(A) to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or

(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and

(3) he reasonably believes that:

(A) the land or property cannot be protected or recovered by any other means; or

(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 9.43. PROTECTION OF 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 actor would be justified under Section 9.41 or 9.42 in using force or deadly force to protect his own land or property and:

(1) the actor reasonably believes the unlawful interference constitutes attempted or consummated theft of or criminal mischief to the tangible, movable property; or

(2) the actor reasonably believes that:

(A) the third person has requested his protection of the land or property;

(B) he has a legal duty to protect the third person's land or property; or

(C) the third person whose land or property he uses force or deadly force to protect is the actor's spouse, parent, or child, resides with the actor, or is under the actor's care.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Posted: **Wed Sep 07, 2011 9:18 am**

It isn't about property as much as it is about life and stopping a potential murder. Once a fire is started who knows what is going to happen? If anything justifies the use of deadly force then arson is near the top of the list. That is true because of everyone from firemen to people who may be overcome by smoke or fire before they can get out of the way. Wildfires can move as fast as the wind and smoke can make being able to evacuate impossible. That doesn't even cover the long term health problems that may occur. Also, losing items such as pictures and family treasures can be devastating to people’s lives. It is much more than just property to me so I wouldn't hesitate to do what I could to stop an arsonist. I would hope people would look at this as protecting family, friends and neighbors lives and livelihoods and not just as a property crime.

Posted: **Wed Sep 07, 2011 9:40 am**

Yes, but you have to look a the criminal description of arson, not just that they are starting a fire. Now, the argument could be made that with the drought conditions we are under any fire set outside and uncontrolled is reckless, but that would be a court trial decision and you have to prove your reasoning for using deadly force to keep them from lighting their cigarette and throwing their butt down.

§ 28.02. ARSON. (a) A person commits an offense if the
person starts a fire, regardless of whether the fire continues
after ignition, or causes an explosion with intent to destroy or
damage:
(1) any vegetation, fence, or structure on open-space land; or
(2) any building, habitation, or vehicle:
(A) knowing that it is within the limits of an
incorporated city or town;
(B) knowing that it is insured against damage or
destruction;
(C) knowing that it is subject to a mortgage or
other security interest;
(D) knowing that it is located on property
belonging to another;
(E) knowing that it has located within it
property belonging to another; or
(F) when the person is reckless about whether the
burning or explosion will endanger the life of some individual or
the safety of the property of another.
(a-1) A person commits an offense if the person recklessly
starts a fire or causes an explosion while manufacturing or
attempting to manufacture a controlled substance and the fire or
explosion damages any building, habitation, or vehicle.
(b) It is an exception to the application of Subsection
(a)(1) that the fire or explosion was a part of the controlled
burning of open-space land.
(c) It is a defense to prosecution under Subsection
(a)(2)(A) that prior to starting the fire or causing the explosion,
the actor obtained a permit or other written authorization granted
in accordance with a city ordinance, if any, regulating fires and
explosions.
(d) An offense under Subsection (a) is a felony of the
second degree, except that the offense is a felony of the first
degree if it is shown on the trial of the offense that:
(1) bodily injury or death was suffered by any person
by reason of the commission of the offense; or
(2) the property intended to be damaged or destroyed
by the actor was a habitation or a place of assembly or worship.
(e) An offense under Subsection (a-1) is a state jail
felony, except that the offense is a felony of the third degree if
it is shown on the trial of the offense that bodily injury or death
was suffered by any person by reason of the commission of the
offense.
(f) It is a felony of the third degree if a person commits an
offense under Subsection (a)(2) of this section and the person
intentionally starts a fire in or on a building, habitation, or
vehicle, with intent to damage or destroy property belonging to
another, or with intent to injure any person, and in so doing,
recklessly causes damage to the building, habitation, or vehicle.
(g) If conduct that constitutes an offense under Subsection
(a-1) or that constitutes an offense under Subsection (f) also
constitutes an offense under another subsection of this section or
another section of this code, the actor may be prosecuted under
Subsection (a-1) or Subsection (f), under the other subsection of
this section, or under the other section of this code.

Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974.
Amended by Acts 1979, 66th Leg., p. 1216, ch. 588, § 2, eff.
Sept. 1, 1979; Acts 1981, 67th Leg., p. 1837, ch. 425, § 1, eff.
Sept. 1, 1981; Acts 1989, 71st Leg., ch. 31, § 2, eff. Sept. 1,
1989; Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994;
Acts 1997, 75th Leg., ch. 1006, § 1, eff. Sept. 1, 1997; Acts
2001, 77th Leg., ch. 976, § 1, eff. Sept. 1, 2001; Acts 2005,
79th Leg., ch. 960, § 1, eff. Sept. 1, 2005.

Posted: **Wed Sep 07, 2011 11:11 am**

Great post, Keith. Very important considerations.

And in no way was I suggesting deadly force against an ignorant (insert favorite term here) who tosses a butt on the ground (though they would certainly be reported to authorities). My original intent was someone who was setting a "device" as described in the Leander fire story or some other "firebug" type activity.

Regardless, intent of this thread is that everyone is up on the law as relates to this matter as it is of very high importance right now with the extraordinarily dry and windy conditions.

Posted: **Wed Sep 07, 2011 6:01 pm**

By your post I had no doubt it was about arson and not negligence.

A-R wrote:http://www.kvue.com/news/Investigators- ... 39853.html
http://impactnews.com/leander-cedar-par ... an-qarsonq" onclick="window.open(this.href);return false;

The above links are not the first hint I've heard that arson could be a cause of some of these fires across the state (this one just hits close to home).

Without advocating any particular course of action or trying to start a panic or a witch hunt, I thought it might be helpful for all to review Chapter 9, subchapter D of the Texas Penal Code - Protection of Property below (with highlights).

It is very rare that I personally can envision a situation where I would utilize subchapter D and resort to deadly force to protect property. But if I see a firebug right now ...

Well, I pray no one else is idiotic or depraved enough to play with fire under these conditions.

SUBCHAPTER D. PROTECTION OF PROPERTY
Sec. 9.41. PROTECTION OF ONE'S OWN PROPERTY. (a) A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other's trespass on the land or unlawful interference with the property.

(b) 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 actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and:

(1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or

(2) the other accomplished the dispossession by using force, threat, or fraud against the actor.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 9.42. DEADLY FORCE TO PROTECT PROPERTY. A person is justified in using deadly force against another to protect land or tangible, movable property:

(1) if he would be justified in using force against the other under Section 9.41; and

(2) when and to the degree he reasonably believes the deadly force is immediately necessary:

(A) to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or

(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and

(3) he reasonably believes that:

(A) the land or property cannot be protected or recovered by any other means; or

(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 9.43. PROTECTION OF 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 actor would be justified under Section 9.41 or 9.42 in using force or deadly force to protect his own land or property and:

(1) the actor reasonably believes the unlawful interference constitutes attempted or consummated theft of or criminal mischief to the tangible, movable property; or

(2) the actor reasonably believes that:

(A) the third person has requested his protection of the land or property;

(B) he has a legal duty to protect the third person's land or property; or

(C) the third person whose land or property he uses force or deadly force to protect is the actor's spouse, parent, or child, resides with the actor, or is under the actor's care.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Posted: **Wed Sep 07, 2011 7:52 pm**

Many of the recent and current fires were started by dry trees and tree limbs falling on power lines and sparking. But today
Texas Forest Service listed 5 of the East Texas fires as being suspected arson. We have deaths in Texas and are putting fire suppression folks in harms way every day. Every one should be alert--SA is needed here also.

Posted: **Wed Sep 07, 2011 9:02 pm**

Bear,

Also a Whitehouse resident (well, right down 346). That fire out by KE kind of worried me. I had already figured I would grab my family, computer, DVDs with videos and pictures, and my two small gun safes (and ammo stores). That covers about everything...

RJ

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