Resisting Arrest in Texas: What the Law Requires and How These Cases Are Litigated
This post provides general legal information only and is not legal advice. Reading this does not create an attorney–client relationship. Outcomes depend on the specific facts of each case.
How Texas defines resisting arrest
In Texas, the offense of resisting arrest is governed by Texas Penal Code § 38.03. A person commits this offense if they:
intentionally
prevent or obstruct
someone they know is a peace officer (or a person acting under the officer’s direction)
from effecting an arrest, search, or transportation
by using force against the officer or another person.
The statute focuses on force, not simply refusing commands or questioning an officer’s authority. Tex. Penal Code § 38.03.
Why “force” is the key issue in most cases
In practice, resisting arrest cases often rise or fall on whether the State can prove force as defined by Texas law. This issue comes up frequently in county-level prosecutions, including cases originating in Red River County.
Texas appellate courts have examined a wide range of fact patterns. Some cases have found that physical struggles, pulling away, or pushing can satisfy the force requirement, while others emphasize that minimal or reflexive movement may not. Courts frequently cited in this area include Latham v. State, 128 S.W.3d 325 (Tex. App.—Tyler 2004), and Mayfield v. State, 758 S.W.2d 371 (Tex. App.—Amarillo 1988).
Because of these fact-specific rulings, resisting arrest cases often depend heavily on:
body-camera footage,
dash-camera video,
witness accounts,
and how the physical interaction is described in reports.
When an arrest is considered “in progress”
Another recurring issue is timing. For a resisting arrest charge to apply, the alleged force must occur while the officer is still effecting the arrest, search, or transportation. Courts generally view this as beginning when the officer attempts to gain physical control and ending once the person is restrained or transported. See generally Latham v. State, 128 S.W.3d 325.
Disputes frequently arise over whether the arrest was still ongoing during handcuffing, movement to a patrol car, or transport to jail.
Charge level and possible enhancement
Resisting arrest is usually charged as a Class A misdemeanor.
However, the offense can be enhanced to a third-degree felony if the accused uses or exhibits a deadly weapon during the resistance. Tex. Penal Code § 38.03(d). The Texas Court of Criminal Appeals addressed this enhancement in Dobbs v. State, 434 S.W.3d 166 (Tex. Crim. App. 2014).
Is an unlawful arrest a defense?
Under Texas law, the unlawfulness of the arrest or search is not a defense to a resisting arrest charge. Tex. Penal Code § 38.03(b). The Legislature eliminated the old common-law right to resist an unlawful arrest.
That said, the legality of the underlying stop can still affect related issues, such as suppression of evidence, credibility of witnesses, or the handling of companion charges.
Common defenses and litigation considerations
Several factors frequently affect how resisting arrest cases are resolved:
1) Whether force actually occurred.
Evidence showing verbal disagreement, hesitation, or passive resistance—without force—can undermine the State’s case.
2) Knowledge that the person was a peace officer.
Lighting conditions, uniforms, announcements, and audio recordings can matter, especially in nighttime or chaotic encounters.
3) Timing of the alleged resistance.
Whether the officer was still effecting the arrest at the moment force is claimed can be decisive.
4) Use of excessive force by law enforcement.
Although unlawful arrest is not a defense, Texas law places limits on the force an officer may use. In narrow situations, self-defense principles may be implicated if excessive force is used. These arguments are highly fact-dependent.
5) Interaction with probation cases.
Resisting arrest charges often arise alongside motions to revoke or adjudicate probation, which can substantially increase exposure and procedural complexity. See generally probation violations and MTR cases in Texas.
Resisting arrest vs. evading arrest
These two charges are often confused:
Resisting arrest (§ 38.03): requires force against an officer or another.
Evading arrest or detention (§ 38.04): involves fleeing, on foot or by vehicle, without necessarily using force.
Both can be filed from the same incident, but they involve different legal elements.
Local court context in Red River County
Criminal cases arising in Red River County are handled at the courthouse in Clarksville, Texas. As with many county courts in Northeast Texas, resisting arrest cases are evaluated in light of local law enforcement practices, video evidence, and how the interaction unfolded in real time. General information about criminal defense matters in this venue is available at the Red River County criminal defense page.
How resisting arrest fits into broader criminal cases
Even when filed as a misdemeanor, resisting arrest can influence:
bond decisions,
plea negotiations,
probation eligibility,
and future enhancement exposure.
It is often evaluated alongside other charges arising from the same incident, rather than in isolation. For an overview of how these cases fit within Texas criminal law more broadly, see the firm’s criminal defense practice areas hub