Use of Force & Arrest · §9.33

Defense of Third Person

Force or deadly force is justified to protect a third person if (1) under the circumstances as the actor reasonably believes them to be, the actor would be justified under §9.31 or §9.32 to defend himself if he were the third person, AND (2) the actor reasonably believes intervention is immediately necessary.

To prove this offense, the State must establish each of the following elements: Actor would be justified in defending himself if in the third person's place (reasonable belief); Reasonable belief intervention is immediately necessary; Force or deadly force as appropriate, mirroring §9.31/§9.32.

The base classification is Justification defense to prosecution, with possible enhancements depending on the conduct, victim, location, or prior history of the actor.

Elements you must prove

  • Actor would be justified in defending himself if in the third person's place (reasonable belief)
  • Reasonable belief intervention is immediately necessary
  • Force or deadly force as appropriate, mirroring §9.31/§9.32
Texas Law — Charge Details
Justification Defense
Offense
Defense of Third Person
Statute
Tex. Penal Code §9.33
Classification
Justification defense to prosecution

Force or deadly force is justified to protect a third person if (1) under the circumstances as the actor reasonably believes them to be, the actor would be justified under §9.31 or §9.32 to defend himself if he were the third person, AND (2) the actor reasonably believes intervention is immediately necessary.

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Worked examples

Worked example 1

Under §9.33, a person is justified in using force or deadly force against another to protect a third person if:

  1. The actor's family is involved
  2. (1) Under the circumstances as the actor reasonably believes them to be, the actor would be justified under §9.31 or §9.32 in using force or deadly force to protect HIMSELF if the actor were the person being protected; AND (2) the actor reasonably believes intervention is immediately necessary to protect the third person Correct
  3. The actor's friend is involved
  4. Only if a peace officer authorizes it
Why: Defense of a third person mirrors the actor's hypothetical right to defend himself in the third person's place — judged from the actor's reasonable belief.
Statute: Tex. Penal Code §9.33
Worked example 2

SCENARIO. A bystander sees a man choking a woman on the street. The bystander tackles the attacker, breaking the attacker's arm. Apply §9.33.

  1. No defense — bystander is not in danger
  2. §9.33 defense of third person applies — the bystander was justified to use force the woman would have been justified to use in self-defense (force to protect against another's use or attempted use of unlawful force), and reasonably believed intervention was immediately necessary Correct
  3. Only assault charges apply
  4. Only the woman's consent matters
Why: Defense of third person requires that the actor reasonably believe (1) the third person would be justified in using force in self-defense AND (2) intervention is immediately necessary. The actor steps into the third person's shoes for the §9.31/§9.32 analysis.
Statute: Tex. Penal Code §9.33
Worked example 3

SCENARIO. A bystander witnesses a 'fight,' but unbeknownst to the bystander, one of the participants is an undercover officer making a lawful arrest. The bystander attacks the officer. Apply §9.33.

  1. Bystander is justified
  2. Bystander generally NOT justified — under §9.33, the actor steps into the third person's shoes, but if the third person had no right to use force (e.g., was being lawfully arrested), the actor likewise cannot claim §9.33; reasonable mistake of fact (§8.02) may be raised but is fact-dependent Correct
  3. Bystander always justified if he believed force was needed
  4. Bystander automatically guilty
Why: §9.33's analysis is from the actor's reasonable belief, but the third person must have a right to use the underlying force. If the third person was being lawfully arrested, no §9.31/9.32 right exists, and §9.33 generally fails. Mistake of fact under §8.02 may mitigate but is fact-specific.
Statute: Tex. Penal Code §9.33; §8.02 (mistake of fact)

Statutory definitions for this topic

Defense of third person Tex. Penal Code §9.33
Force or deadly force is justified to protect a third person if (1) under the circumstances as the actor reasonably believes them, the actor would be justified under §9.31 or §9.32 to defend himself if he were the third person; AND (2) the actor reasonably believes intervention is immediately necessary.