Texas Law Steeped in Frontier Tradition Taking Some Shots

It was a warm August evening in 1888 when distillery owner John Laws shot dead a man he caught stealing two bottles of whiskey.

Laws was convicted of murder. But a Texas appeals court overturned the verdict under a state law that allows residents to kill to protect their property at night.

A Houston grand jury, relying on the century-old law, refused last month to indict a homeowner who fatally shot a man who appeared to be stealing his truck in the middle of the night. The slain man, wrecker driver Tommy Dean Morris, was in fact attempting to legally repossess the truck.

The slaying touched a nerve in Texas, the only state that gives citizens such wide latitude to kill to protect not only life but also property. The question--asked by Morris’ widow among others--is whether a frontier-era law intended to corral cattle thieves has a place in modern society.

“Unfortunately, we have to shoot before we ask questions or risk becoming a victim,” says Pam Lychner, president of Justice for All, a victim’s advocacy group in Houston. “The police can’t protect us all, so you have to be prepared to protect yourself.”

But such shoot-first thinking, critics argue, allows deadly force to counter such minor property crimes as criminal mischief or theft at night--in effect, capital punishment for a relatively minor infraction.

“Someone can take the hood ornament off of my car, or write a socially unacceptable word on my mailbox at night, and I can kill him,” says Robert Schuwerk, a University of Houston Law Center professor.

“The law made sense 100 years ago when, if someone took your horse, you could die in the middle of nowhere,” says Neil McCabe, who teaches criminal law at South Texas College of Law in Houston.

“But Texas isn’t a frontier state any more. You don’t have to take matters into your own hands. The Legislature really needs to re-weigh the competing values of property versus life.”

For many Texans, such arguments are a hard sell amid continuing crime fears. Supporters of the law are so legion that when legislators revamped the Texas penal code last year, the section on deadly force remained untouched.

“I don’t recall it getting any discussion at all,” said one of the code’s authors, state Sen. John Whitmire of Houston. “It’s a time-honored Texas tradition to protect yourself at home at night.”

A secretary who works in Huntsville, where the state prison is located, seems to speak for many when she says: “We don’t molly-coddle robbers down here. Shoot, I worked all my life to get what I have, and I’m going to protect what’s mine. Someone comes on my property and tries to take something, I’m going to shoot them.”

A month before Morris was killed, Scottish tourist Andrew De Vries became lost late one night in an upscale Houston neighborhood. He climbed over a fence and began shouting and banging on the door, frightening homeowner Jeffrey Agee.

Agee killed De Vries with two shots from a .25 caliber pistol. A grand jury refused to indict him for murder.

“In a civilized world, you can’t just shoot people you find in your yard,” says Dallas lawyer Windle Turley, who is representing De Vries’ widow in a civil suit.

Texas law not only allows deadly force to prevent a theft at night, but also to kill the fleeing thief--if the owner believes the stolen goods cannot be recovered any other way.

In California, by contrast, deadly force may only be used in life-threatening situations, and never to merely protect property.

But with crime listed in opinion polls as one of America’s top concerns, Texas legislators are not likely to revise the controversial statute.

“There is a siege mentality, a feeling that crime is omnipresent, it could happen to any one of us at any time,” says law professor Schuwerk.

“The repo case flares up and people say, ‘That’s a shame, the innocent repo man died.’ ” But as in war, when a church is bombed instead of the artillery emplacement, says Schuwerk, “people tend to consider it collateral damage.”