What counts as resisting arrest in Texas?
Under Penal Code §38.03, resisting arrest means using force against a peace officer to prevent or obstruct an arrest, a search, or a transportation. It is a Class A misdemeanor, up to one year in county jail, and a third degree felony, 2 to 10 years, if the person used a deadly weapon to resist. The statute contains one sentence that decides most of these cases: §38.03(b) says it is no defense that the arrest or search was unlawful. Pulling away, going limp, or arguing is not force; the fight is almost always over whether what happened was force at all.
- Force against the officer is the element. Words, refusing to cooperate, and passive non-compliance are not force.
- An illegal arrest is expressly no defense, which is the sharp difference from evading arrest, where an unlawful detention defeats the charge.
- There is a narrow justification in §9.31(c): if the officer used or attempted more force than necessary before any resistance, force to protect yourself can be justified.
- The charge is very often added after the fact, when the original offense is weak or when an officer's use of force is in question. Bodycam is the whole case.
- A conviction cannot be expunged. Deferred adjudication can be, and because §38.03 is not an assaultive offense for sealing purposes, a dismissed deferred is sealed sooner than most people expect.
Resisting arrest is the most common add-on charge in Texas, and the one most often filed when nothing else holds up. Peter M. Barrett has defended cases against Dallas police and county deputies since 1994, across more than 150 jury trials, and the case review is free and confidential. This guide explains what the State actually has to prove, why the unlawful arrest rule is narrower than it sounds, and how these cases are beaten.
What the State must prove
- Intent to prevent or obstruct. The conduct must be intentional. Reflexive movement, a stumble, or flinching during a takedown is not an intentional obstruction.
- An arrest, search, or transportation. The statute covers all three, including resistance inside a patrol car or at the jail, and resistance to a person acting in an officer's presence at their direction.
- Force against the officer or another person. This is the live issue in nearly every case. The force has to be directed at a person, not merely at avoiding custody. Tensing arms, pulling an arm away, locking up, and refusing to walk are routinely charged and are the kind of conduct juries and appellate courts have treated as something other than force against an officer.
- Knowledge the person was a peace officer. Plain clothes and unmarked vehicles put this in play.
The grades, and the statutes around it
| Charge | Conduct | Level | Range |
|---|---|---|---|
| Resisting arrest, search, or transportation (§38.03) | Using force against an officer to prevent or obstruct | Class A misdemeanor | Up to 1 year, $4,000 fine |
| Resisting with a deadly weapon (§38.03(d)) | Using a deadly weapon to resist the arrest or search | 3rd degree felony | 2 to 10 years |
| Interference with public duties (§38.15) | With criminal negligence, interrupting or impeding an officer | Class B misdemeanor | Up to 180 days |
| Evading arrest or detention (§38.04) | Intentionally fleeing a lawful arrest or detention | Class A; state jail felony in a vehicle or with a prior; higher if someone is hurt | 1 year to 20 years |
§38.15 is the quieter and often better answer. It requires only criminal negligence, carries half the exposure, and it has a defense built into the statute: if the alleged interference consisted of speech only, it is a defense to prosecution. A Class A resisting charge reduced to a Class B interference charge is a real win, and it happens.
The unlawful arrest rule, and its one exception
§38.03(b) is blunt: it is no defense to prosecution that the arrest or search was unlawful. A person who was arrested on no legal basis at all and pushed the officer away can still be convicted of resisting. This is the single most misunderstood rule in Texas criminal law, and it is the reason "but they had no right to arrest me" is the wrong first sentence in these cases.
The exception is in the justification chapter, not in §38.03. Under §9.31(c), the use of force to resist an arrest or search is justified if, before the person offers any resistance, the officer uses or attempts to use greater force than necessary to make the arrest or search, and then only when and to the degree the person reasonably believes the force is immediately necessary to protect themselves against that excessive force. The sequence is everything. Force that comes first, from the officer, opens the defense. Force that comes first from the accused closes it.
That is why the video matters more than the report. Who moved first, and how hard, decides whether this is a justification case or not. The suppression guide explains how an unlawful stop still helps: it can kill the underlying charge and any evidence found, even where it does not excuse the resistance.
Resisting and evading are not the same charge
| Resisting arrest, §38.03 | Evading arrest, §38.04 | |
|---|---|---|
| Conduct | Using force against the officer | Fleeing from the officer |
| Lawfulness of the arrest | Expressly no defense | The attempt must be lawful, so an unlawful detention defeats the charge |
| Base grade | Class A misdemeanor | Class A misdemeanor |
| What raises it | A deadly weapon, to a 3rd degree felony | A vehicle or watercraft, a prior conviction, or injury or death during the pursuit |
Both are commonly filed together out of one encounter. The evading arrest guide covers that side in full.
Where resisting cases are won
- It was not force. The most effective defense is the simplest. Pulling an arm, stiffening, dropping weight, and refusing to be moved are not force used against a person, and the offense report's language rarely matches what the video shows.
- The video. Bodycam and dashcam are requested immediately, along with any jail booking footage and the officers' use of force reports. Footage gets overwritten, so the request cannot wait.
- Sequence under §9.31(c). Where the officer escalated first, the justification defense is live and goes to the jury.
- Why the charge exists. A resisting count that appears alongside a dismissed or weak primary charge, or in a case where force was used on the accused, invites a hard look at the officer's motivation for filing it.
- Reduction. Interference with public duties under §38.15 is a Class B with a speech-only defense, and it is the natural landing point in a case where the contact was marginal.
- The record. A conviction reads to every employer as violence against a police officer, and it is permanent. Deferred adjudication is treated differently: §38.03 is not one of the chapters excluded by Gov't Code §411.072, so a successfully completed deferred in a resisting case is among the dispositions eligible for sealing once it is dismissed and discharged. See the Class A misdemeanor guide.
Common questions
Is resisting arrest a felony in Texas?
No, unless a deadly weapon was used. Resisting arrest, search, or transportation under Penal Code §38.03 is a Class A misdemeanor carrying up to one year in county jail and a fine up to $4,000. It is a third degree felony, 2 to 10 years, only where the person used a deadly weapon to resist.
Can I be convicted of resisting if the arrest was illegal?
Yes. §38.03(b) says it is no defense to prosecution that the arrest or search was unlawful. The illegality can still destroy the underlying case and any evidence seized, but it does not by itself excuse using force against the officer. The narrow exception is §9.31(c), where the officer used or attempted excessive force before any resistance.
Is pulling away from an officer resisting arrest?
The statute requires force used against the officer or another person. Pulling an arm away, tensing up, going limp, or refusing to walk is conduct directed at avoiding custody rather than force against a person, and that distinction is where these cases are fought and frequently won. It is charged routinely, which is not the same as being proved.
What is the difference between resisting and evading arrest?
Resisting is using force against the arrest. Evading is running from it. They are separate statutes, and the critical difference is that an unlawful arrest is no defense to resisting, while evading requires the attempted arrest or detention to have been lawful. Both start as Class A misdemeanors.
Can a resisting arrest charge be dismissed or reduced?
Yes. Dismissals happen where the video does not show force, and reductions to interference with public duties, a Class B misdemeanor with a speech-only defense, are a common resolution. Deferred adjudication is available in a first case. Which of these is realistic depends on the footage and on the strength of the original charge.
What should I do if I have been charged?
Do not describe the encounter to police or in writing to anyone. Write down the names of every officer and witness while it is fresh, photograph any injuries, and get a lawyer requesting the bodycam before it ages out. The consultation is free and confidential: (214) 526-0555, answered 24/7 for emergencies.
The law this article describes, at the source.
This article is general legal information about Texas law, not legal advice about your case. Reading it does not create an attorney-client relationship. Laws change, so confirm the current rule with a licensed criminal defense attorney about your specific facts. Request a free, confidential case review.