Consumer Information

Legal Tip: Theft vs. Burglary

U.S. Law Shield

U.S. Law Shield and Texas Law Shield members asked program attorneys if “theft” and “burglary” are different under the law and how the rules of deadly force apply in each case.Pink Flamingo Q: How is a “theft” different from a “burglary” under the law? In the information provided by Texas Law Shield, I notice that burglary during the daytime is a justifiable reason to be able to use deadly force, but not theft (theft at night is a different matter, it seems). It seems as though you are losing property either way. Is it that burglary occurs only inside a residence (business, vehicle), or are other factors involved? Can a “theft” become a “burglary” if certain conditions are present? An example of each might be useful, if you have the time. — Dirks44 U.S. Law Shield Law Shield: Thank you for the question. You are correct in that you may only use deadly force against theft occurring during the nighttime, and that you are able to use deadly force against burglary at any time of the day.

It then becomes a very pertinent question what the difference is between the two. Burglary is removing property from your residence. Note that this does not apply to unattached garages and the like. Theft is taking property that is not inside the residence and not on your person (taking property from your person is considered robbery).

So, for example, burglary would be breaking down your door and taking your TV. Theft would be taking a pink lawn flamingo out of your front yard and running off with it, or stealing your lawnmower out of your unattached garage.

If you want to ask a confidential question of the U.S. Law Shield or Texas Law Shield lawyers, send your question through email.

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Comments (13)

  1. OK, I’m going to wait and see what the intruder has in mind. Perhaps I’ll engage him in a Q&A before I show him my gun. Get real! If someone breaks my window in the middle of the night to get into my house, I believe to have the right not to wait until I’m attacked, wounded or dead, before I make it clear to the perp that he’s not welcome!

    1. Most of the law I have dealt with is CA law.

      Burglary is the entry into a building or structure with intent to commit a crime. I guess if you enter without intent, it’s B&E?

  2. We, as a society, have wrapped ourselves in so many shades of laws and criminal sub-sub-sub categories, that regular common sense might get you in jail, instead of the bad guy who threatened you and/or your loved ones. I’m not asking for the wild west to come back, but I wish for less lawyers, legal loop holes and other BS!

    I’m normally a peaceful guy and obey the law, but if I hear glass braking in the middle of the night and someone enters my bedroom, I shoot and then call 911.

  3. The hairs that must be split on these topics seem to be associated with risk to life, i.e. once a threat to life/limb is a possibility, a firearm’s use is a possibility.
    Great Q&A’s!

  4. Sorry for misusing this, but how do I get to leave a comment on an Ruger LC9 ‘critique’? At the end of the article it says: “What did you like? Not like? Share your opinion in the comment section”, only…I can’t find such a comment section anywhere. I can also not find any “Contact us” link. Maybe it’s just male blindness…

  5. If someone comes in the otherwise locked house through an unlocked kitchen window and steals things, is this still considered a break-in or burglary?

    1. First I am not a lawyer, so take this as an educated opinion.

      “Breaking and Entering” a component of Burglary involves using “force” to gain entry. That is generally accepted as *any* force. So turning an unlocked door knob is applying force to turn the knob. Likewise pushing an unlocked or partially opened window up would be using “force” to open the window.

  6. There are generally 3 acts that get sometimes get used in terms…




    Under Florida law which I am familiar with it goes like this.

    THEFT :
    is the taking of one’s property

    taking property from one’s residence (note under FL law residence is any area inside say a fenced area either inside the house or outside in the immediate area within a fenced area it is considered burglary.)

    is taking property from a person with force or implied force strong armed, armed or implied of being armed… or with threat of bodily harm.

    A home cannot be robbed, only a person.

    I use to hear “my house was robbed”…
    NO… a house can not be robbed… Only a person can be robbed.

    These are basically the guidelines we used to determine the crime elements under Florida law.

    But it does vary from state to state.

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