Texas Resisting Arrest Laws

All states have resisting arrest laws that prohibit suspects from fighting with law enforcement officers attempting to take them into custody. Resisting arrest is a separate criminal charge, filed in addition to the original crime for which the person was being arrested

This article explains the definition of resisting arrest in Texas, the potential penalties, and a few common defenses. For advice on an active criminal case, it’s a good idea to consult with a local criminal defense lawyer for guidance on potential defenses.

How Texas Defines Resisting Arrest

Texas law has two code sections regarding resisting and evading arrest. The laws apply whether the arrest is lawful or unlawful. The Texas Penal Code defines resisting arrest as intentionally preventing or obstructing a law enforcement officer or other peace officer from carrying out an arrest, search, or transportation of the individual or another by using force against the officer.

Resisting arrest in the state of Texas requires the intentional use of force against the officer. Texas courts have held that “use of force” means violence, aggression, or “immediate threat of violence.” Physical struggling or pulling away may be sufficient, but verbal threats without more may not qualify.

Resisting arrest is considered a serious crime, especially if you use force against the arresting officer. If the suspect uses a deadly weapon, the offense is a third-degree felony.

Evading arrest is a separate charge that involves fleeing or running from a law enforcement officer attempting to make a lawful arrest. Unlike resisting arrest, fleeing an unlawful arrest is not illegal.

Lawful vs. Unlawful Arrest

In general, a lawful arrest is one in which the arresting officer has probable cause to believe that the suspect has committed a crime. Probable cause includes one or both of the following:

• A valid arrest warrant
• Witnessing the offense or having other reasonable belief that the suspect may have committed a crime

The officer must identify themselves as a law enforcement officer for a lawful arrest.

An unlawful arrest does not meet these criteria. An arrest is unlawful if:

• The officer is not clearly identifiable as a law enforcement officer
• The warrant is defective or invalid
• The officer cannot give a legitimate reason for the arrest

A suspect being detained may not resist the arrest, even if they believe the arrest is unlawful. To legally evade arrest, the suspect must know that the arrest is unlawful. In most instances, it’s best to allow the arrest to proceed and let an attorney contest it in court.

Examples of Lawful Arrest

Below are a few common examples of a lawful arrest:

• Officers witness a crime: An officer observing a driver running a red light and nearly causing an accident could make a legal arrest for reckless driving. Since the officer personally witnessed the offense, the arrest is lawful.
• “Hot pursuit”: An officer sees someone fleeing from a building after a burglar alarm sounds, and witnesses report seeing someone break a window. The officer pursues and arrests the individual. The officer’s reasonable belief that a crime was just committed provides probable cause for a lawful arrest.
• Valid arrest warrant: Police officers arrive at John’s home with a valid arrest warrant issued by a judge based on probable cause that John committed burglary. The officers identify themselves as police, show John the warrant, and place him under arrest. This is a lawful arrest even if John is ultimately innocent of the charges.

There are many other types of lawful arrests.

Examples of an Unlawful Arrest

The following are examples of situations where the arrest may have been unlawful:

• Lack of probable cause: Police arrest David simply because he “looks suspicious” while walking through a neighborhood at night, without any evidence that he committed or was about to commit a crime. Without specific facts establishing probable cause, this arrest would likely be unlawful.
• Invalid warrant: Officers take Maria into custody based on an arrest warrant that contains the wrong address, incorrect identifying information, or lacks a judge’s signature. A defective warrant often fails to support a lawful arrest.
• Failure to identify: A plainclothes officer in an unmarked car attempts to detain someone without clearly identifying themselves as law enforcement or displaying a badge. If a reasonable person wouldn’t know they were being arrested by police, the arrest may be unlawful.

Even if you believe your arrest is unlawful based on these examples, Texas law does not permit you to resist arrest using force. Determinations about whether an arrest was lawful or unlawful are made by judges after the fact, not by individuals during the encounter. If you believe you were unlawfully arrested, the best strategy is to raise the issue through your attorney in court, not by physically resisting the officer.

Penalties for Resisting and Evading Arrest in Texas

Resisting arrest is a Class A misdemeanor with penalties of up to one year in jail, fines of up to $4,000, or both. If the suspect uses a deadly weapon while resisting, the crime becomes a third-degree felony, with penalties of two to 10 years imprisonment, fines of up to $10,000, or both.

Evading arrest is a Class B misdemeanor. If the defendant has either a previous conviction for evading or used a vehicle to flee, the offense becomes a State Jail felony, punishable by a jail term of 180 days to two years’ jail time, a fine of up to $10,000, or both.

Evading arrest is a third-degree felony if the offender uses a vehicle and either another person suffers a serious bodily injury during the evasion or they employ a tire deflation device during their escape, regardless of prior convictions. The offense becomes a second-degree felony if another person dies as a direct result of the attempt to flee.

Potential Defenses To Resisting Arrest Charges

Texas does not recognize an unlawful arrest as a defense to resisting arrest. Even if a warrant is invalid or there are other flaws in the arrest process, you cannot use force to resist. However, several other defenses may be available depending on the circumstances of your case:

• Lack of intent: Resisting arrest requires intentional conduct. If your actions were accidental, reflexive, or unintentional, you may have a valid defense. For example, an involuntary physical reaction or movements caused by a medical condition might not constitute intentional resistance.
• No use of force: The statute requires the use of force against an officer. If you merely verbally objected to the arrest, went limp, or engaged in passive resistance without using force, violence, or threats, you may not have committed resisting arrest under Texas law.
• Not a peace officer: The person making the arrest must be a law enforcement officer or peace officer. If the individual was not a legitimate officer or failed to properly identify themselves as law enforcement, you may be able to argue that you did not intentionally resist an arrest by a peace officer.
• Constitutional challenges: While unlawful arrest isn’t a defense to resisting arrest, constitutional violations during the arrest may support motions to suppress evidence or exclude statements you made. These challenges are typically raised through pre-trial motions rather than as defenses at trial.

An experienced Texas criminal defense attorney can evaluate the specific facts of your case and determine which defenses may apply to your situation. The viability of any defense depends heavily on the particular circumstances of your arrest and the evidence available.

Related Resources

• Texas Criminal Laws
• Texas Criminal Statute of Limitations Laws
• Police Misconduct and Civil Rights
• Excessive Force and Police Brutality

Getting Legal Advice

If you’ve been charged with resisting arrest in Texas, you’re facing serious consequences that could affect your freedom, your finances, and your future. A conviction for resisting arrest, whether a misdemeanor or a felony, creates a permanent criminal record that can affect employment opportunities, professional licenses, housing applications, and more.

The legal stakes are high. Even a Class A misdemeanor conviction can result in up to a year in county jail and a $4,000 fine. If your case involves allegations of using a deadly weapon, you’ll face a third-degree felony with potential prison time of two to 10 years. These penalties are in addition to any charges stemming from the original reason for your arrest.

An experienced Texas criminal defense attorney can:

• Review the circumstances of your arrest to identify potential defenses
• Challenge the legality of the search, arrest, or detention through pre-trial motions
• Negotiate with prosecutors for reduced charges or alternative sentencing options
• Protect your constitutional rights throughout the criminal justice process
• Build a strong defense strategy tailored to the specific facts of your case
• Represent you at trial if your case cannot be resolved through negotiation

FindLaw’s directory of Texas criminal defense attorneys is free to access and can help connect you to a legal advocate in your area. Time is critical in criminal cases. Witnesses’ memories fade, and important filing deadlines can pass. The sooner you consult with an attorney, the more options you may have available for your defense.

Don’t face these charges alone. Contact a qualified attorney to discuss your case and explore your legal options. Many offer free initial consultations to evaluate your situation and explain your options.