Comment

The predecessor statute of Texas Penal Code section 9.63 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.” Acts 1925, 39th Leg., R.S., (S.B. 7) (effective until 1974) (gave “the right of moderate restraint or correction” to the “guardian over the ward”).

As a defense found in Penal Code chapter 9, the guardian-incompetent defense must be disproved by the state beyond a reasonable doubt. See Tex. Penal Code § 9.63 (setting out the defense); see also Tex. Penal Code § 2.03 (defining defenses); § 9.02 (labeling the justifications in chapter 9 “defenses”). Also, because of the similarity in structure between the guardian-incompetent 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). By its terms, the defense ordinarily applies only to offenses involving the use of force, but through Penal Code section 9.03, it can also justify confinement of a mentally incompetent person by his or her guardian. See Adelman v. State, 828 S.W.2d 418, 422 (Tex. Crim. App. 1992) (reviewing sufficiency of jury’s rejection of the defense to allegation of false imprisonment by mother of her twenty-five-year-old, mentally ill son).

Definitions. The Penal Code does not define “mental incompetence,” “guardian,” or “institution.” By contrast, the offense of “Interference with Rights of Guardian of the Person” specifies that the definition of “ward” in the Texas Estates Code is to be used. See Tex. Penal Code § 25.10. Jurors should ordinarily give undefined words any meaning acceptable in common parlance unless the words possess a technical or particular meaning. Medford v. State, 13 S.W.3d 769, 772 (Tex. Crim. App. 2000); Tex. Gov’t Code § 311.011(b) (“Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.”).

The term “guardian” could be defined as it is in the Texas Estates Code: “Guardian means a person appointed as a . . . . guardian under Texas Estates Code Chapter 1101.” Tex. Est. Code § 1002.012. Depending on the circumstances, a more particular definition could be formulated from Estates Code sections 1101.151 and 1101.152: “A guardian is a person that a court appoints to have authority, to one degree or another, over another person because he or she lacks the capacity to care for himself or herself in whole or in part.” But because the statute also permits the defense to be used by nonguardians, the Committee believed, as a practical matter, that the jury instructions would seldom require a definition and thus does not recommend one.

As for the term “institution,” it is not certain that the legislature intended a particular meaning other than its colloquial one. The Committee found no relevant statutory definition. The definitions of “institution,” “mental health facility,” and “mental hospital” in the Texas Health and Safety Code might come closest, but may be under- and over-inclusive and are not recommended by the Committee. See Tex. Health & Safety Code § 242.002(10) (“‘Institution’ [in chapter not applicable to mental health and intellectual disability] means an establishment that: (A) furnishes, in one or more facilities, food and shelter to four or more persons who are unrelated to the proprietor of the establishment; and (B) provides minor treatment under the direction and supervision of a physician licensed by the Texas Medical Board, or other services that meet some need beyond the basic provision of food, shelter, and laundry.”); § 571.003(12) (defining “mental health facility”); § 571.003(13) (defining “mental hospital”). Consequently, jurors should use their own common understanding of the term “institution.”

The Committee encountered more difficulty concerning the term “mental incompetence.” In some instances, the person alleged to be mentally incompetent may have already been declared mentally incompetent by a court. Other times, there may be a difficult fact issue for the jury to decide. The Committee believed that a definition of “mental incompetence” may be warranted to prevent jurors from arbitrarily applying an inaccurate definition. See Grotti v. State, 273 S.W.3d 273, 282–83 (Tex. Crim. App. 2008) (upholding finding that hypothetically correct jury charge would have included Health and Safety Code section 671.001’s definition of “death” in criminally negligent homicide trial of physician for occluding a patient’s endotracheal tube).

The Estates Code provides that a reference in that Code or “any other law” to a person who is mentally incompetent has the same meaning as “an incapacitated person” in the Estates Code. Tex. Est. Code § 1001.003. That term, in turn, means:

1. (1) a minor;
2. (2) an adult who, because of a physical or mental condition, is substantially unable to:
   1. (A) provide food, clothing, or shelter for himself or herself;
   2. (B) care for the person’s own physical health; or
   3. (C) manage the person’s own financial affairs; or
3. (3) a person who must have a guardian appointed for the person to receive funds due the person from a governmental source.

Tex. Est. Code § 1002.017.

One appropriate way of defining the term would be: a mentally incompetent person includes an individual who, because of a mental condition, is substantially unable to (1) provide food, clothing, or shelter for himself or herself; (2) care for the person’s own physical health; or (3) manage the person’s own financial affairs.

This standard is similar to that of “disabled individual” in Penal Code section 22.04(c)(3)(B) (“‘Disabled individual’ means a person . . . (B) who otherwise by reason of age or physical or mental disease, defect, or injury is substantially unable to protect the person’s self from harm or to provide food, shelter, or medical care for the person’s self.”).

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 alsoTex. 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: