In Texas, resisting arrest means using force against a peace officer to stop an arrest or a search, including the trip to jail afterward (Penal Code § 38.03). It’s a Class A misdemeanor with up to a year in jail and a $4,000 fine, and a third-degree felony if a deadly weapon was used to resist. And one thing surprises almost everybody: an illegal arrest is no defense (§ 38.03(b)). The fight is over what you actually did in those few seconds, and whether it was force against the officer.
Call (713) 664-4000. Don’t post your phone video, and don’t explain what happened to anyone until we’ve seen the body camera footage.
Most resisting charges ride along with something else, like a DWI stop or an old warrant, and we defend both. Jay Blass Cohen, a Houston criminal defense lawyer, founded Blass Law in 2009 and has never worked for the prosecution.
What the State has to prove
Under § 38.03(a), prosecutors have to prove all of this beyond a reasonable doubt:
- You intentionally prevented or obstructed the officer, or someone acting in the officer’s presence and at the officer’s direction.
- You knew the person was a peace officer (or was helping one).
- The officer was trying to arrest, search or transport you or someone else.
- You did it by using force against the officer or another person.
That last element is where most of these cases live. Not cooperating isn’t using force. Refusing to turn around or arguing with the officer, without more, doesn’t meet it, though it can lead to other charges. The Texas Court of Criminal Appeals has said the force has to be aimed at the officer or at the officer’s physical efforts to make the arrest, like hitting him or forcefully pulling against his grip. In Dobbs v. State (2014), it threw out a deadly weapon resisting conviction against a man who held a gun to his own head and never turned it on the officers.
Pulling away is where it gets close. In Finley v. State (2016), the same court upheld a conviction where a man tensed up and kept pulling his arms toward his body while two officers tried to cuff him, because he was pulling against their force. So a pull can be enough. Whether yours was is a question of fact, and police reports love the phrase “pulled away.” The body camera sometimes shows a flinch, or a guy trying to keep his feet on a wet curb.
How Texas grades resisting arrest
| Version | Level | Range |
|---|---|---|
| Using force against an officer to stop an arrest, search or transport | Class A misdemeanor (§ 38.03(c)) | Up to 1 year in county jail, up to a $4,000 fine (§ 12.21) |
| Using a deadly weapon to resist the arrest or search | Third-degree felony (§ 38.03(d)) | 2 to 10 years in prison, up to a $10,000 fine (§ 12.34) |
A deadly weapon includes a firearm or anything capable of causing death or serious bodily injury in the way it’s used or meant to be used (§ 1.07(a)(17)). The felony needs more than a weapon being nearby. You have to have used it to resist, and under Dobbs that use has to be directed against the officer. If the felony sticks with a deadly weapon finding, a judge can’t give you regular probation after a conviction (Code of Criminal Procedure Art. 42A.054(b)). That finding is often what we’re really negotiating.
An unlawful arrest isn’t a defense, but excessive force can be
The law draws a hard line here. Even if the arrest was bad, you’re not allowed to fight it in the street (§ 9.31(b)(2)). The exception is self-defense against excessive force. Under § 9.31(c), you’re justified in resisting if the officer used or tried to use more force than necessary before you offered any resistance, and you used only the force you reasonably believed was immediately necessary to protect yourself. Who went first matters, and video often settles it.
A bad stop still matters for the case you were originally pulled over for. If the officer had no lawful basis, that can sink the DWI or the possession charge.
Resisting, evading or assault on a public servant
Evading arrest is running from an officer (§ 38.04). Unlike resisting, evading requires that the officer was “attempting lawfully” to arrest or detain you, so the legality of the stop is part of that case. On foot it’s usually a Class A misdemeanor, and with a vehicle it’s a felony. See our Houston evading arrest page.
Assault on a public servant requires bodily injury to an officer you know is lawfully doing his job. It’s a third-degree felony, and a second-degree felony when the officer is a peace officer, like any police officer or deputy (§ 22.01(b)(1), (b-2)). Resisting needs no injury at all. Our assault on a police officer page covers that charge.
Interference with public duties is a Class B misdemeanor, up to 180 days and a $2,000 fine (§§ 38.15, 12.22). In the right case it’s a lesser charge worth pushing for.
How we fight a resisting arrest charge
The video, frame by frame. We get the body camera, the dash camera, the jail’s booking video and whatever a bystander filmed, and compare it to the report line by line. Reports get written after the adrenaline wears off. We make the State show force aimed at the officer, not a startled reaction or a slow response to shouted commands.
The officer’s force and the original case. When the officer went hands-on first and too hard, we build the § 9.31(c) defense from the footage and the medical records. And we attack the original stop, because the whole picture changes when the main case falls apart.
Resisting arrest results from our case files
- Dismissed in Harris County: client was accused of turning aggressively toward an officer as if to strike him during an arrest.
- Dismissed in Harris County: DWI 2nd, resisting arrest and unlawful carrying of a weapon. Client refused to get out of his car on a traffic stop, was tased, and had a loaded Glock in the car, with a .201 blood test.
See more of our case results. Prior results do not guarantee a similar outcome.
Keeping it off your record
A dismissal can make you eligible to have the arrest expunged under Code of Criminal Procedure Chapter 55A, as long as you weren’t placed on court-ordered community supervision for it (Art. 55A.051). Deferred adjudication counts as supervision, so it closes the expunction door. But if you’ve never been convicted or placed on deferred for anything else (fine-only traffic tickets aside) and there’s no family violence finding, on a misdemeanor resisting charge the court has to issue an order of nondisclosure once you’re discharged, if you meet the conditions in Gov’t Code §§ 411.072 and 411.074. Our deferred adjudication page explains the tradeoffs.
Resisting arrest questions
If the original charge gets dropped, does resisting go away too?
Not automatically. They’re separate charges, and an unlawful arrest is no defense to resisting. But when the main case collapses, the State’s position on the rest gets a lot weaker.
Can I be charged for resisting someone else’s arrest?
Yes. The statute covers force used to stop the arrest, search or transport of “the actor or another.” Grabbing a friend away from an officer can do it.
Charged with resisting arrest in Houston? Call Blass Law
We’ll get the footage and tell you straight what the State can actually prove, then fight the charge and whatever it rode in with. Call (713) 664-4000 or fill out the form for a free consultation. If this happened this week, call now, while the video is still easy to get.