A Resisting Arrest charge often arises in the chaos of a tense encounter — and the line between lawfully reacting and committing a crime can be thin. Board Certified criminal defense attorney and former Felony Chief Prosecutor Brian Foley defends resisting cases throughout Montgomery, Harris, Brazos, and Walker County, Texas.
What Is Resisting Arrest, Search, or Transportation?
Under Texas Penal Code §38.03, a person commits an offense if he intentionally prevents or obstructs a peace officer from effecting an arrest, search, or transportation by using force against the officer or another person. The key word is force. Simply running away is evading arrest, not resisting — resisting requires force directed at the officer or someone else.
The statute contains an important wrinkle: it is not a defense that the arrest or search was unlawful. That makes the factual questions — did you actually use force, and was any reaction a response to an officer's excessive force — the heart of the defense.
Punishment Ranges for Resisting Arrest in Texas
| Situation | Offense Level | Punishment Range |
|---|---|---|
| Resisting by using force against an officer | Class A Misdemeanor | Up to 365 days jail; up to $4,000 |
| Resisting while using a deadly weapon | 3rd Degree Felony | 2–10 years prison; up to $10,000 |
How Resisting Arrest Cases Are Defended
Many resisting cases come down to what "force" really means. Tensing up, pulling an arm away, or going limp are not always the kind of force the statute requires, and body-camera video frequently tells a different story than the police report. Brian examines whether the officer used excessive force, whether your movements were involuntary or defensive, and whether the State can actually prove intent. Resisting is commonly charged alongside evading arrest, interference with public duties, or assault, and release terms are set through bond conditions.