Comment

As a defense found in Texas Penal Code chapter 9, reasonable discipline by a parent, guardian, or person acting in loco parentis must be disproved by the state beyond a reasonable doubt. See Tex. Penal Code § 9.61 (setting out the defense); see also Tex. Penal Code § 2.03 (defining defenses); § 9.02 (labeling the justifications in Penal Code chapter 9 “defenses”). When raised by the evidence, the jury must be instructed on who has the burden of proof, and the law must be applied to the facts. Tex. Penal Code § 2.03(d); Quattrocchi v. State, 173 S.W.3d 120, 123 (Tex. App.—Fort Worth 2005, pet. ref’d); Dill v. State, No. 04-10-00419-CR, 2011 WL 3610109, at *2 (Tex. App.—San Antonio Aug. 17, 2011, pet. ref’d) (not designated for publication). To raise the issue, there must be evidence that the force used was not deadly, meaning that it was not capable of causing death or serious bodily injury. Prenger v. State, 108 S.W.3d 501, 507 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d); King v. State, No. 05-04-01513-CR, 2007 WL 882438, at *6 (Tex. App.—Dallas Mar. 26, 2007, no pet.) (not designated for publication). The defense is not applicable unless force is alleged; it is inapplicable, for instance, to injury to a child by failing to seek medical treatment. Browning v. State, No. 01-93-00897-CR, 1995 WL 477546, at *9 (Tex. App.—Houston [1st Dist.] Aug. 10, 1995, pet. ref’d) (not designated for publication). That said, if a parent would have been justified in using force under section 9.61, then Penal Code section 9.03 functions to extend the justification (and any defense in Penal Code chapter 9) to confinement instead of force, provided the defendant “takes reasonable measures” to properly end the confinement. Tex. Penal Code § 9.03.

Meaning of “When and to the Degree.” The phrase “when and to the degree” is used in at least eleven defenses. The majority include a requirement that force be “immediately” necessary for a specified purpose. See Tex. Penal Code § 9.04 (threat of force); § 9.31 (self-defense); § 9.32 (deadly-force self-defense); § 9.34 (suicide prevention); § 9.41 (defense of property); § 9.51 (arrest and search); Tex. Gov’t Code § 411.148(h) (force to collect a DNA sample). Reasonable discipline by parents, educators, and guardians—along with a few other defenses involving something akin to discipline—does not require that force be “immediately necessary.” See Tex. Penal Code §§ 9.61–.63; see also Tex. Penal Code § 9.53 (correctional facility employee “is justified in using force against a person in custody when and to the degree the officer or employee reasonably believes the force is necessary to maintain security . . .”). Generally, these disciplinary defenses involve less urgency than traditional justifications like self-defense, and, in many instances, it is better to encourage a period of reflection instead of immediate discipline. Nevertheless, the defense still includes the phrase “when and to the degree.” A majority of the Committee believed that the use of this phrase requires (1) that the amount of force used be objectively reasonable and (2) that when it was used also be objectively reasonable. The jury could reject the defense, for example, if they found a two-week delay in disciplining the child to be unreasonable, even if the jury otherwise believed the decision to use force and degree of force (if used closer in time to the misbehavior) were reasonable. This is consistent with how one court of appeals viewed the elements. Sherwood v. State, No. 01-96-00265-CR, 1998 WL 20012, at *3 (Tex. App.—Houston [1st Dist.] Jan. 22, 1998, no pet.) (not designated for publication) (listing as an element that the defendant “reasonably believed at the time he used force” that force was needed to discipline, safeguard, or promote the child’s welfare).

Other Committee members were concerned that the use of “when” in the statute was ambiguous and might mean only “in the event that.” See Black’s Law Dictionary 1593 (6th ed. 1990) (explaining in entry for “when” that it is “[f]requently employed as equivalent to the word ‘if’ in legislative enactments and in common speech”). These members believed that the instruction unduly emphasized a temporal element that may not be part of the statute, particularly for a defense that requires no “immediate” necessity.

Ultimately, the Committee decided that a time element was implicit in the phrase “when and to the degree” in each of the defenses using that phrase and that “when” signals the circumstances (including time) under which the defense is justified. This is reflected in the formulation of the elements as follows: