Can a defendant raise the defense of necessity in a Motion to Dismiss? If you read TCCP Article 28.01, it looks like entrapment is the only statutory defense the legislature included to be raised pre-trial. I have a case where the defense is trying to get the case dismissed based on the defense of necessity. My argument is that the defense of necessity, like self-defense or defense of property, is a question for either the judge or jury.

Any comments are welcome, as well as any case law.

JAMIE

I'm reminded of the arraignment from My Cousin Vinny where Judge Haller says "It appears to me that you want to skip the arraignment process, go directly to trial, skip that, and get a dismissal. Well, I'm not about to revamp the entire judicial process just because you find yourself in the unique position of defending clients who say they didn't do it."

Your analysis is exactly right. Essentially, the defense is asking for a summary judgment of the necessity defense, which is, as you mentioned, a jury issue.