Resisting Arrest, Search, or Transportation: Texas Penal Code §38.03

Texas Criminal Law

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The Texas Resisting Arrest, Search, or Transportation law makes it illegal to forcefully obstruct a police officer from making an arrest.

The ofense of Resisting Arrest in Texas requires the actual use of force against an officer or another person. Resisting Arrest is closely related to the offense of Evading Arrest or Detention, but Evading Arrest does not require the state to prove use of force. The Texas Resisting Arrest law also requires the state to prove an intention of preventing or obstructing the police from arresting, searching, or transporting someone.

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The Texas legislature codified this criminal offense in Texas Penal Code Section 38.03. The law was not updated in 2023. In fact, this law has not been amended since 1993.

Note that Section 545.421 of the Texas Transportation Code defines an entirely separate offense called Fleeing or Attempting to Elude Police Officer 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.”

The Penal Code classifies the Texas Resisting Arrest law under Title 8 “Offenses Against Public Administration,” Chapter 38 “Obstructing Governmental Operation.” The crimes in this chapter generally relate to actions taken that work directly against government processes, such as administration of justice or incarceration. Learn more about the Texas offense of Resisting Arrest, Search, or Transportation below.

What is the current Texas law about Resisting Arrest, Search, or Transportation?

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 the state to prove the use of force, but it does not require the state to prove that the officer was lawfully making the arrest.[2] Therefore, even if you were arrested unlawfully, you can still be convicted if you resist with force.

Evading Arrest does not require the state to prove the use of force, but it does require the state to prove the evasion was from a lawful arrest. So you can be convicted of Evading Arrest even if you did not use force, but only if the arrest was lawful. If the arrest was unlawful, then you 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:[3]

(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 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 we 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.

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 statute of limitation for Resisting Arrest in Texas?

Misdemeanor level Resisting Arrest charges have a two-year limitations period.[4] Felony level offenses have a three-year limitations period.[5]

What is the penalty for a Texas Resisting Arrest offense?

Resisting Arrest is a Class A Misdemeanor[6] unless the state’s attorneys prove that a deadly weapon was used, in which case it is a third degree felony.[7]

Can you get probation for Resisting Arrest in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Resisting Arrest, and judges are also allowed to accept deferred adjudication plea deals.[8]

Note, however, that no matter the offense, neither judges nor juries may recommend community supervision for any suspended sentence of over 10 years.[9] Also, judges may not grant community supervision after a conviction if (1) the defendant used or exhibited a deadly weapon during the commission of the felony or immediate flight thereafter and (2) the defendant used or exhibited the deadly weapon himself or was a party to the offense and knew that a deadly weapon would be used or exhibited.[10]

What level of crime is Resisting Arrest in Texas?

The Penal Code classifies Resisting Arrest as a Class A misdemeanor, but the state can seek a third degree felony enhancement by proving that you used a deadly weapon.

Learn more about the penalty range for this offense in the section above.

^1. Texas Penal Code §38.03. This law is current as of the 88th Legislature Regular Session.^2. Texas Penal Code §38.03(b). But see Texas Penal Code Section 9.31(c).^3. under Texas Penal Code §9.31(c)^4. Code of Criminal Procedure 12.02(a)^5. See Code of Criminal Procedure 12.01(9)^6. Texas Penal Code §38.03(c)^7. Texas Penal Code §38.03(d)^8. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102 .^9. Art. 42A.053(c), Texas Code of Criminal Procedure^10. Art. 42A.054(b), Texas Code of Criminal Procedure

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