Capital Murder in Texas

Suppose, hypothetically, that the mayor and city council of a Texas border town learned that the city was threatened by criminals on the far side of the border in Mexico. Suppose the mayor then ordered the chief of police to organize an armed posse to enter Mexico and kill people the mayor identified as criminals, and suppose the chief carried out this order. Could the mayor get away with this?

It's probably fair to say that most Texas prosecutors would charge him with mass murder and put him on trial for his life. Under Sections 19.02 and 19.03 of the Texas penal code, a person commits capital murder when he intentionally takes the lives of two or more people.

The mayor might argue that he was justified in the killings because his victims were criminals, and he was acting in defense of the community. Under Section 9.31 of the penal code, a person is justified in using force against another when force is immediately necessary to protect himself or another person against the victim's use of unlawful force. The mayor might have some trouble producing evidence of an "immediate" threat under the circumstances.

He might argue that as a high-ranking public official, he had the authority to order the killings. In our system of enumerated powers and due process of law, however, he would have trouble producing a license to kill as a perquisite of his office. He would hardly dare to claim the protections of Section 9-21, which allows the use of deadly force in the lawful conduct of war. He doesn't have the authority to declare war or launch a military operation against Mexico.

He might argue that he didn't actually kill anybody, but that would be unavailing. Under Section 7.02 of the penal code, a person is responsible for an offense committed by another if he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.

He might argue that all the deaths occurred in Mexico, but that argument wouldn't hold up. Under Section 1.04 of the penal code, Texas has jurisdiction over an offense if the conduct in Texas constitutes an attempt, solicitation, or conspiracy to commit an offense in another jurisdiction that is also an offense under the laws of Texas. Conspiring in Texas to commit mass murder in Mexico is a capital crime in Texas.

What the executive and legislative branches of a city government would never dare do, the executive and legislative branches of our national government have done. For over five years, our leaders, without recourse to a constitutional declaration of war, have conspired to dispatch soldiers to kill people in foreign countries.

A considerable part of the criminal conduct, especially that committed by the executive branch employees, occurred in Texas, where the penalty for it is death. A responsible and courageous prosecutor could single-handedly end the war and restore public confidence in our legal system by bringing these felons to justice under the laws of Texas.