In the state of Texas, an individual is allowed to carry pepper spray (oleoresin capsicum) to defend themselves. The Texas Penal Code does not classify pepper defense spray as an illegal weapon, and it may be used in self-defense. An individual may not use pepper spray to commit an act of assault or bring a canister of pepper spray into an area that prohibits this weapon.
Places That Prohibit Aerosol Pepper Spray
Certain venues prohibit Texans from carrying and using pepper spray on site. For example, a courthouse may set rules prohibiting entrants to bring in pepper spray. A K-12 public school and school buses may prohibit students, staff and guests, like parents, from carrying pepper spray while on site.
A county jail or a prison also may prohibit visitors from bringing in pepper spray. A county community supervision and corrections department, or a county probation office, may not permit visitors to carry pepper spray.
Allowing Small Quantities of Pepper Spray
University campuses lean toward allowing pepper spray, but in small quantities. For example, the University of Texas at Austin generally does not allow an individual to carry a chemical-dispensing device. The exception is that UT Austin allows pepper spray if carried in a small chemical dispenser sold commercially for personal protection.
The rule further clarifies that the chemical dispenser must be designed, made or adapted for the purpose of dispensing a substance capable of causing an adverse psychological or physiological effect on a human being. A person interested in visiting the campus can find guidelines about what weapons or self-defense products are allowed on campus on the website of the university’s police department.
When Texas law states that pepper spray must be in a small chemical dispenser, the question arises as to what is considered small. Generally, a commercially available chemical dispenser of pepper spray of several ounces would be considered small. A large refill dispenser that contained a great deal of pepper spray and was meant for multiple uses would unlikely be considered small.
Justifications for Using Pepper Spray
An individual may use pepper spray or threaten to use pepper spray for defense purposes when their safety is threatened or to protect another person. A person may not use pepper spray in response to verbal provocation alone or to resist an arrest or search that they know is being made by a peace officer. An individual is also prohibited from using pepper spray if they provoked another’s use or attempted use of unlawful force.
The exception to this is if the victim abandoned the encounter or clearly communicated to the other party their intent to do so, reasonably believing they could safely abandon the encounter, and the other party nevertheless continued or attempted to use unlawful force against them.
Assault Charge for Using Pepper Spray
An individual commits an act of assault if they intentionally, knowingly or recklessly cause bodily injury to another person. They also commit assault if they intentionally or knowingly threaten another person with imminent bodily injury or intentionally or knowingly cause physical contact with another person, such as if the holder of the pepper spray knows or should reasonably believed that the other person will regard the contact as offensive or provocative.
Whether an individual who is carrying pepper spray can be charged with assault depends on how they display or use the substance. If they spray another person unprovoked, they could be charged with assault. If they were simply carrying pepper spray in their pocket, it is unlikely they could be charged with assault.
Typically, an act of assault is classified as a Class A misdemeanor. The penalty for a Class A misdemeanor is up to one year in jail and a fine up to $4,000.
Civil Lawsuit Over Use of Pepper Spray
If a victim has been injured by another party’s unlawful use of pepper spray, the victim can sue the individual for personal injury suffered. It is not necessary for the state to have brought criminal charges against the user of the spray, but it helps the victim if the defendant was found guilty of assault.
Texas state law sets a two-year statute of limitations for a personal injury claim. That means the victim must bring suit not later than two years after the day they were injured. Texas Civil Practice and Remedies Code provides that a plaintiff can recover additional damages up to three times the amount of economic damages, or actual damages, they suffered if the defendant acted knowingly or intentionally. The economic damages include the amount they had to pay for medical bills and their lost income.
The plaintiff can also recover three times the mental anguish damages if the defendant acted intentionally. A judge may order a defendant found to be at fault for assault to pay court costs. The judge may order the defendant to pay for attorney’s fees where there is a specific statute that authorizes such a recovery. Typically, attorney’s fees are not recoverable in a personal injury lawsuit.
Security Officers and Pepper Spray
A private security officer who has received training for the use of a chemical dispensing device that is provided by the Texas Commission on Law Enforcement or approved by the Texas Private Security Board is allowed to carry a chemical dispensing device that contains pepper spray. This means that the private security officer can carry a large chemical dispenser, but not a small chemical dispenser as noted in Texas Penal Code.
The Private Security Board regulates the private security and private investigation industry in Texas under the Texas Occupations Code. The Private Security Board has approved training on the use of a chemical dispensing device for a security officer who has successfully completed the board approved Level III training.
Police Use of Pepper Spray
A peace officer, or a law enforcement officer such as a police officer or sheriff’s deputy, is allowed to use pepper spray in Texas. A peace officer may use pepper spray to control a crowd as well as to defend themselves. When a peace officer acts in an official capacity, wearing their uniform and on duty, they are usually immune from a civil lawsuit for assault.
Generally, a victim would have to establish that a peace officer was using pepper spray in an unlawful manner or outside their capacity as a law enforcement officer, and not to defend themselves or others, in order to have the court rule in their favor.
- Dallas County Courts: Prohibited Items
- The University of Texas at Austin Police Department: Weapons on Campus
- Texas Penal Code: Chapter 46, Weapons
- Texas Penal Code: Chapter 9, Justification Excluding Criminal Responsibility
- Texas Penal Code: Chapter 22, Assaultive Offenses
- Texas Penal Code: Chapter 12, Punishments
- Harris County Community Services & Corrections Department: Frequently Asked Questions
- Texas Civil Practice and Remedies Code: Chapter 16, Limitations
- Texas Civil Practice and Remedies Code: Chapter 41, Damages
- Texas Civil Practice and Remedies Code: Chapter 31, Judgments
- Texas Department of Public Safety: Non-Lethal Weapons
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.