Comment

The predecessor statute of Texas Penal Code section 9.62 was article 1142 of the 1925 Penal Code and included defenses for parents for an assault on a child, guardians for an assault on a ward, masters for an assault on an apprentice, and teachers for an assault on a “scholar.” See Acts 1925, 39th Leg., R.S. (S.B. 7) (effective until 1974) (gave “the right of moderate restraint or correction” to the “teacher over the scholar”). The title of the current statute, “Educator-Student,” implies that it applies to teachers (or school administrators) and students, but the text “broadly covers anyone entrusted with care, supervision, or administration of another person.” State v. Zascavage, 216 S.W.3d 495, 498 (Tex. App.—Fort Worth 2007, pet. ref’d). It provides that nondeadly force is justified:

1. if the actor is entrusted with the care, supervision, or administration of the person for a special purpose; and
2. when and to the degree the actor reasonably believes the force is necessary to further the special purpose or to maintain discipline in a group.

Tex. Penal Code § 9.62.

Because the terms “entrusted,” “care,” “supervision,” “administration,” and “special purpose” are all undefined and there is no age or other disability required for the person being supervised or cared for, the defense could theoretically apply in a surprisingly broad array of situations. In practice, it appears to arise mostly in educational settings, and thus the instruction refers to the defense in those terms. In cases where this does not apply, however, practitioners should substitute headings that better fit their circumstances, such as “Maintaining Discipline Defense.”

One court of appeals—in a civil assault case involving a public school teacher—defined “special purpose” in section 9.62 as “that of controlling, training, or educating the child.” Hogenson v. Williams, 542 S.W.2d 456, 459–60 (Tex. App.—Texarkana 1976, no writ) (rejecting jury instructions that permitted the use of force for “instruction and encouragement”). Given the limited number of cases interpreting this term, however, “special purpose” appears not to have acquired a technical or particular legal meaning and thus should not be defined in the jury instructions. See Green v. State, 476 S.W.3d 440, 445–46 (Tex. Crim. App. 2015).

As a defense found in Penal Code chapter 9, the educator-student defense must be disproved by the state beyond a reasonable doubt. See Tex. Penal Code § 9.62 (setting out the defense); see also Tex. Penal Code § 2.03 (defining defenses); § 9.02 (labeling the justifications in Penal Code chapter 9 “defenses”). Because of the similarity in structure between the educator-student defense and the defense of reasonable discipline, cases interpreting the latter defense may be instructive. See, e.g., Quattrocchi v. State, 173 S.W.3d 120, 123 (Tex. App.—Fort Worth 2005, pet. ref’d) (requiring reasonable discipline defense to apply law to the facts and set out that state has the burden of proof). One court of appeals has held that the educator-student defense is a confession and avoidance defense and that the defendant is not entitled to an instruction where the defendant denies the assaultive conduct. Smith v. State, 133 S.W.3d 665, 667 (Tex. App.—Corpus Christi–Edinburg 2003, pet. ref’d).

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: