Is the Use of Pepper Spray Legal in Texas?

In the accompanying video, Texas Law Shield Independent Program Attorney Emily Taylor discusses when it is legal to pepper-spray someone; advises if  there is any criminal or civil liability for using pepper spray; considers whether some types of pepper spray are not legal; briefs you on specific laws regarding where pepper spray can or cannot be carried; advises you if a special license or permit is required to possess or use pepper spray; and hashes out if the spray can be concealed or carried openly. Click the video to see the answers, or read the transcript below the video:

 

Presenter: Emily Taylor, Texas Law Shield Independent Program Attorney:

First of all, in the state of Texas, is pepper spray legal? Yes, although there is a prohibited item that the State of Texas calls a chemical-dispensing device. Commercially sold pepper sprays don’t fall into this category. In fact, the law specifically exempts chemical dispensers that are sold commercially for the purposes of self protection.

So, anything you can buy, say, at Academy or at a sporting-goods store to protect yourself, is generally a lawful means of protection in the State of Texas. So, it’s legal to carry pepper spray. But do you have to have any kind of license to do so? No.

Anyone can carry pepper spray. There is no licensing requirement, and there’s no place that’s exempted by law in the State of Texas where you cannot carry that pepper spray. So, we can all carry pepper spray around.

When can we actually use it? Well, you have to use pepper spray as a reasonable response to someone else’s use of unlawful force against you. The use of pepper spray is the use of force in the State of Texas, not a use of deadly force. So, the use of force laws apply.

Unfortunately, there aren’t hard and fast rules about when you can use pepper spray in your own self-defense. Ultimately, it’s probably a jury who’s going to determine whether or not your use of pepper spray was ultimately reasonable.

But, for example, if someone has punched you in the face and they’re coming back to punch you again, you could likely use pepper spray in your own self-defense, and a jury may find that was a reasonable use of pepper spray. On the other hand, if you are in a verbal altercation with someone, they get up close to you, they poke you in the chest, but it doesn’t look like they’re going to engage in any more physical movement — they’re not going to punch you, they don’t look like they’re about to do something worse than just poke you in the chest then stop — using pepper spray in your self-defense is probably unreasonable in that instance. But, again, it’s up to a jury to decide that.

So, what sort of liability could be imposed if you use pepper spray improperly? Well, if you use pepper spray improperly, so a jury has found that it was not reasonable in your own self-defense, then you could be liable for criminal assault. This is generally a Class A misdemeanor, although there are times in which it could be a greater offense or a lesser offense, but generally up to a Class A misdemeanor punishable by up to a year in the county jail, up to a $4,000 fine, or both.

If you are liable for criminal assault and your behavior was not justified, you may be liable for civil damages as well. So, if that person that you pepper sprayed had to go to the hospital or had to pay out-of-pocket for any injuries, you may be responsible for reimbursing them the money that they lost.