Resisting Arrest, Search, or Transportation

Texas Criminal Law

Resisting Arrest, Search, or Transportation is defined in Section 38.03 of the Penal Code, and the offense involves the use of force in attempting to prevent the police from arresting someone.

Resisting Arrest, Search, or Transportation is closely related to the offense of Evading Arrest or Detention, but Evading Arrest or Detention does not require the state to prove use of force.

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Note that Section 545.421 of the Texas Transportation Code specifies an entirely separate offense for the scenario in which someone “operates a motor vehicle and willfully fails or refuses to bring the vehicle to a stop or flees, or attempts to elude, a pursuing police vehicle when given a visual or audible signal to bring the vehicle to a stop.”

What is the current Texas law about Resisting Arrest?

The current Texas law defines the offense of Resisting Arrest, Search, or Transportation in Penal Code Section §38.03 as follows:[1]

(a) A person commits an offense if he intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer’s presence and at his direction from effecting an arrest, search, or transportation of the actor or another by using force against the peace officer or another.

What is the difference between Resisting Arrest and Evading Arrest?

Resisting Arrest requires you to have used force against the arrest, but it does not require the officer to be acting lawfully in making the arrest.[2] Therefore, even if you were arrested unlawfully, you can still be convicted if you resist.

Evading Arrest does not require you to have used force, but it does require the evasion to be from a lawful arrest. So you can be convicted of Evading Arrest even if he or she did not use force, but only if the arrest was lawful. If the arrest was unlawful, then he or she cannot be convicted of Evading Arrest.

What are the defenses to Resisting Arrest?

The use of force to resist an arrest or search is justified under Texas Penal Code Section 9.31(c):

(1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and

(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer’s (or other person’s) use or attempted use of greater force than necessary.

What does the government have to prove?

The government has to prove intent for both of Evading Arrest and Resisting Arrest. This means that you are not guilty of either crime if you did not intend to flee or intend to resist arrest. If you did not know that the police were trying to arrest you, then you cannot be guilty of Resisting Arrest. For instance, if you were not paying attention or you thought the police were trying to get someone else, than you have a defense to these charges.

Sometimes I come across situations where individuals are charged with Evading Arrest, but they are charged with nothing else. This always begs the question whether they were being lawfully detained in the first place or intended to evade at all.

What is the punishment for a Resisting Arrest conviction?

Resisting Arrest is a Class A Misdemeanor[3] unless the state’s attorneys prove that a deadly weapon was used, in which case it is a third degree felony.[4]

When are you free to leave the police if you are being questioned, interrogated or detained?

Learn more about when you are free to leave police encounters on the Evading Arrest or Detention offense page.

What is the punishment for Evading Arrest Or Detention?

There are two different punishment subsections for Evading Arrest charges. Learn more about Evading Arrest or Detention punishment here.

What is the current Texas law about Evading Arrest Or Detention?

Learn more about the Evading Arrest or Detention law.

^1. Texas Penal Code §38.03^2. Texas Penal Code §38.03(b). But see Texas Penal Code Section 9.31(c).^3. Texas Penal Code §38.03(c)^4. Texas Penal Code §38.03(d)

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