Can You Go to Jail for Resisting Arrest in Texas?
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Texas Bar verified. Reggie London (Texas Bar No. 24043514) and Njeri London (Texas Bar No. 24043266) are the co-founding partners of L and L Law Group, PLLC — based at 5899 Preston Rd, Suite 101 in Frisco, Texas (Collin County), with many 5-star Google reviews, and available 24/7 for criminal defense consultations.
Table of Contents
§ 38.03 — Resisting Arrest, Search, or Transportation
Intentionally preventing or obstructing a person known to be a peace officer from effecting an arrest, search, or transportation by using force against the officer or another. Class A misdemeanor (up to 1 year jail + $4,000 fine). Third-degree felony (2-10 years) if defendant used a deadly weapon. Force requirement: more than passive resistance — must be active opposition (pushing, pulling away with force, hitting).
No right to resist unlawful arrest — § 38.03(b)
Texas Penal Code § 38.03(b) explicitly states: "It is no defense to prosecution under this section that the arrest or search was unlawful." This is the controversial "no right to resist unlawful arrest" rule. Even if the officer lacked probable cause, lacked warrant, or was making unlawful seizure, the defendant cannot use force to resist. Remedy for unlawful arrest is suppression of evidence and civil rights lawsuit — NOT resistance.
§ 38.04 — Evading Arrest or Detention
Intentionally fleeing from a person known to be a peace officer attempting to lawfully arrest or detain. Class A misdemeanor for fleeing on foot. State-jail felony (180 days-2 years) if defendant used a vehicle or watercraft and not previously convicted. Third-degree felony (2-10 years) if vehicle and prior evading conviction, OR if anyone suffered serious bodily injury. Second-degree felony (2-20 years) if anyone died.
§ 22.01(b)(1) — Assault on Public Servant
If defendant assaults peace officer during resistance — separate higher charge. Standard assault on peace officer: third-degree felony (2-10 years). Aggravated assault on peace officer: first-degree felony (5-99 years or life). These charges typically stack with resisting arrest charges.
Defenses to resisting arrest
Excessive force by officer — defendant may use reasonable force to defend against excessive force (§ 9.31(c)). Mistake of identity — defendant didn't know person was officer (plainclothes situations). Lack of force — passive resistance (going limp, refusing to walk) generally doesn't satisfy "force" element. Many resisting cases turn on whether defendant's actions constituted "force against the officer" vs. passive non-compliance.
Have a Texas legal question?
Call L and L Law Group for a free, confidential consultation. We handle criminal defense across Collin, Dallas, Denton, and Tarrant counties.
Call (972) 370-5060In our practice defending Texas criminal cases, we have represented clients in Collin, Dallas, Denton, and Tarrant County criminal courts on the full Texas Penal Code and Health & Safety Code spectrum. Reggie's prosecutor background in Dallas County means we know the State's evidentiary playbook; Njeri's trial-trained motion practice anchors the suppression-driven defense work.
Frequently Asked Questions
What's the penalty for resisting arrest in Texas?
Class A misdemeanor — up to 1 year county jail + $4,000 fine. Third-degree felony (2-10 years) if defendant used a deadly weapon. Often charged together with assault on public servant (third-degree felony separately).
Can I resist an unlawful arrest in Texas?
No — Penal Code § 38.03(b) explicitly states the unlawfulness of arrest is not a defense. Texas applies the no-right-to-resist rule. Remedy for unlawful arrest is suppression motion and civil rights lawsuit, not physical resistance.
Is going limp resisting arrest in Texas?
Generally no — § 38.03 requires "force against the officer." Passive resistance (going limp, refusing to walk) typically doesn't satisfy force element. Active opposition (pushing, pulling away forcefully, hitting) is required for prosecution.
What's the difference between resisting and evading arrest?
Resisting (§ 38.03) — using force against officer to prevent arrest in person. Evading (§ 38.04) — fleeing from officer attempting arrest/detention. Different conduct, different statutes, different penalties. Both can be charged for same incident if both conducts occurred.
Can I sue officers if they used excessive force?
Yes — 42 U.S.C. § 1983 civil rights claims for excessive force violate Fourth Amendment. Texas Tort Claims Act allows some state-law claims. Filing a § 1983 lawsuit doesn't affect criminal case outcome but provides civil remedy. Excessive force may also support a § 9.31(c) defense to resisting charges.
