Texas necessity defense — Penal Code § 9.22, the “choice of evils”

The necessity defense — Texas’s “choice of evils” rule in Penal Code § 9.22 — justifies otherwise-criminal conduct a person reasonably believed was immediately necessary to avoid a greater imminent harm. It is a § 2.03 defense: once the evidence raises it, the State must disprove it beyond a reasonable doubt.

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The choice-of-evils statute (§ 9.22)

Texas puts necessity in Chapter 9 of the Penal Code — the justification chapter that also houses self-defense and defense of others. Read with § 9.02 — “it is a defense to prosecution that the conduct in question is justified under this chapter” — § 9.22 tells jurors that breaking the law can be lawful when it was the lesser of two evils in a genuine emergency.

The section is short, and every word of it matters:

“Conduct is justified if: (1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm; (2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and (3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.” — Tex. Penal Code § 9.22

Necessity is a justification, not a denial. It does not argue that the accused failed to do the act or lacked the required mental state; it concedes the conduct and argues the law should excuse it because the alternative was worse. The word “conduct” is defined by § 1.07(a)(10) as “an act or omission and its accompanying mental state” — a definition that, as we will see, drives how Texas courts decide who may raise the defense at all. The classic textbook example is the driver who speeds a passenger having a heart attack to the hospital, or the boater who ties up at a private dock to escape a sudden storm: a traffic or trespass law is technically broken, but avoiding death or serious injury was the greater good.

The three elements of necessity

A trial court will only let a jury consider necessity if the evidence raises all three statutory elements. Each is a separate hurdle, and the third is a question of law for the judge.

1. Reasonable belief that the conduct was immediately necessary to avoid imminent harm

The accused must have believed — and an ordinary, prudent person in the same situation could have believed — that acting right now was necessary to head off a harm that was about to happen. This is the emergency element: it merges the ideas of immediacy (no reasonable, lawful alternative was available) and imminence (the harm was impending, not merely possible).

2. The harm avoided clearly outweighed the harm the law prevents

By ordinary standards of reasonableness, the value of avoiding the threatened harm must clearly outweigh the harm the criminal statute was written to prevent. This is the balancing element — the “choice of evils” itself — and it is why necessity almost never justifies taking an innocent life to save property or convenience.

3. No legislative purpose to exclude the defense plainly appears

The judge asks whether the Legislature meant to take necessity off the table for this offense. Courts answer by reading the statute that defines the charged crime; the defense is available for every offense unless the Legislature specifically excluded it. See the case law below.

Plus a threshold rule: you must own the conduct

Because necessity is a “confession-and-avoidance” defense, a defendant must admit the act and the culpable mental state of the offense before the instruction is available. A person cannot deny doing the crime and, in the same breath, argue the crime was justified.

Necessity vs. duress vs. self-defense

Necessity is easy to confuse with two neighbors. All three can excuse conduct that looks criminal, but the source of the pressure, the type of defense, and — critically — who bears the burden of proof are different. The table below is the fastest way to keep them straight.

Two practical takeaways fall out of that table. First, duress is the one that shifts the burden onto the defendant — because § 8.05 labels itself an “affirmative defense,” the accused has to prove it by a preponderance under § 2.04, while necessity and self-defense leave the burden on the State. Second, the defenses can overlap, and which one fits depends on where the danger came from: a threat from a person points to duress or self-defense, while a threat from events or nature points to necessity. For a deeper treatment of the force defenses, see our page on Texas self-defense under § 9.31.

Who has to prove it — a § 2.03 defense

The single most-litigated technical point about necessity is the burden of proof, and getting it right matters at trial. Necessity is a “defense” governed by Penal Code § 2.03 — not an “affirmative defense” governed by § 2.04.

The distinction is not a technicality. Under § 2.03, once the issue of necessity is raised by the evidence, the defendant carries no burden of persuasion. The State must disprove the justification beyond a reasonable doubt, and the jury is instructed that if it has a reasonable doubt about whether the conduct was justified, it must acquit. Compare duress: § 8.05 expressly calls itself an affirmative defense, so under § 2.04 the accused must prove compulsion by a preponderance of the evidence. Insanity and entrapment are affirmative defenses too. Necessity and self-defense are not — they are § 2.03 defenses the prosecution must negate.

Practically, that means the defense’s job on necessity is to raise the issue — to put enough evidence in the record, from any witness, that a rational jury could find each element — and then to hold the State to its burden of disproving it. A defendant’s own testimony can be enough to raise the issue and require the instruction.

The “imminent harm” requirement

Necessity lives or dies on imminence. The harm the accused was trying to avoid has to have been about to happen, and the criminal act has to have been the emergency response to it — not a considered choice made with time to spare.

Texas courts read “imminent” strictly. In Davis v. State, the Fort Worth Court of Appeals explained that “‘imminent’ means something that is impending, not pending,” and that “harm is imminent when there is an emergency situation and it is ‘immediately necessary’ to avoid that harm.”³ A “reasonable belief,” the court added, is one “that would be held by an ordinary and prudent person in the same circumstances as the actor.” A danger that is speculative, or that has already passed, or that could have been avoided by a lawful alternative, is not imminent — and without imminence there is no necessity instruction. This is the element the State attacks most often, because everyday problems and slow-building pressures rarely qualify as the kind of true emergency § 9.22 was written for.

How Texas courts have interpreted § 9.22

Because the statute is written in broad terms, most of its working meaning comes from the Texas Court of Criminal Appeals and the courts of appeals. Four ideas dominate the case law: necessity is a “confession-and-avoidance” defense, the harm avoided must be truly imminent, the defense reaches every offense unless the Legislature excluded it, and a more specific justification statute can displace it.

You must admit the conduct: confession and avoidance

The threshold rule comes from Juarez v. State. Necessity, the Court of Criminal Appeals held, is a confession-and-avoidance defense, so “a defendant must admit to the conduct — the act and the culpable mental state — of the charged offense” before the instruction is available.¹ Juarez bit a police officer’s finger during an arrest and testified that he did not bite intentionally; even so, the Court held he was entitled to a necessity instruction, because his testimony about the circumstances — that the officer had him face-down and he feared he was suffocating — allowed the jury to infer the required mental state.¹ The Court also settled a statutory conflict on the threshold question, holding that “Section 9.22’s admission requirement governs the specific defensive issue of necessity and therefore trumps Section 2.03(c)’s general rule” that a defense may be raised by evidence from any source.¹

The Court of Criminal Appeals reaffirmed the rule in Maciel v. State, explaining that “a defendant cannot both invoke necessity and flatly deny the charged conduct,” while clarifying that no magic words are required: the defensive evidence — not a formal, on-the-record confession — must admit the conduct.² Because driving while intoxicated is a strict-liability offense with no culpable-mental-state element, the driver in Maciel did not have to admit any mental state at all; her testimony that she was trying to move the vehicle was enough to satisfy confession and avoidance.²

When the instruction is warranted

A defendant is entitled to an instruction on necessity whenever the evidence — from any witness, including the State’s — raises each element, regardless of how strong or weak the trial judge thinks that evidence is; credibility is for the jury, not the court. If the trial court refuses a warranted instruction, that refusal can be reversible error, as it was for the defendant in Juarez.¹ That is why the imminence definition from Davis matters so much: it is the screen the trial court uses to decide whether the evidence has raised the first element at all.³

Which offenses necessity can reach — and when a specific statute wins

The third element — no legislative purpose to exclude the defense — is decided by looking at the statute that defines the charged offense. In Bowen v. State, the Court of Criminal Appeals held that “the plain language codifying the necessity defense evinces a legislative intent that the defense apply to all offenses unless the legislature has specifically excluded it from them,” and found no such exclusion in the resisting-arrest statute.⁴ The default, in other words, is availability.

But a more specific justification statute can take necessity off the table for the exact conduct it governs. In Dudas v. State, the Court of Criminal Appeals held that when a defendant is entitled to a deadly-force self-defense instruction under § 9.32, a necessity instruction is precluded, because “the Legislature’s intent to preclude the necessity defense does plainly appear in cases involving the use of deadly force in self-defense.”⁵ The Legislature was “far more specific” when it defined the conduct and harm in the deadly-force statute, so that specific rule — not the general choice-of-evils rule — controls.⁵ The practical lesson: necessity is the general, gap-filling justification, and it yields where the Legislature has already written a precise rule for the situation.

When the necessity defense does not apply

Necessity is narrow by design. It fails — often before the jury ever hears about it — in several recurring situations:

• The harm was not imminent. A future, speculative, or already-past danger will not support the defense. The harm has to be an emergency demanding action now. Davis v. State.³
• A lawful alternative existed. If a reasonable, legal option was available, the conduct was not “immediately necessary.” Necessity is a last resort, not a first choice.
• The defendant denies the act. Because necessity is confession-and-avoidance, a person who denies committing the charged act cannot also claim it was justified. Juarez; Maciel.¹
• A more specific statute governs the conduct. Where the Legislature has written a targeted justification — deadly force in self-defense under § 9.32 is the clearest example — that statute controls and necessity is unavailable. Dudas.⁵
• The balance does not favor the defendant. The good of avoiding the harm must clearly outweigh the harm the criminal law targets, judged by ordinary standards of reasonableness. § 9.22(2).
• The “emergency” kept going. Once the imminent danger passes, continuing to break the law loses the justification.

None of this means necessity is a dead letter — it can be decisive in the right facts, especially medical emergencies, escapes from immediate danger, and split-second choices between two bad outcomes. It means the defense has to be built carefully, on the statute’s own terms, with the record made for the instruction. If you are weighing whether necessity fits your facts, talk it through with counsel before you talk about it with anyone else.