What is taking a weapon from a peace officer under Texas law?
Texas Penal Code § 38.14 makes it a felony to intentionally or knowingly and with force take — or attempt to take — a firearm, nightstick, stun gun, or personal protection chemical dispensing device from a peace officer or other protected official, with the intention of harming the officer or a third person. The base offense is a third-degree felony; it is a second-degree felony if the weapon is the officer’s firearm.
Texas Penal Code § 38.14 makes it a felony to take — or even attempt to take — a weapon away from a law-enforcement officer during an encounter. The statute is short, but every word in it carries weight. A person commits the offense if the person intentionally or knowingly and with force takes or attempts to take from a peace officer (or one of the other listed officials) that official’s firearm, nightstick, stun gun, or personal protection chemical dispensing device, with the intention of harming the officer or a third person.
Three features of that text drive almost every § 38.14 case. First, the offense is not limited to actually getting the weapon — an attempt to take it is enough, which is why a hand on the holster or a grab during a takedown can be charged as the completed felony. Second, the State has to prove a specific intent to harm the officer or someone else; a panicked, reflexive grab is not automatically the same thing as reaching for a gun in order to use it. Third, the person has to know the individual is a peace officer. The Legislature built a presumption around that knowledge, but a presumption is not proof, and it can be rebutted.
The statute does not protect only patrol officers. By its terms it also covers a federal special investigator, an employee or official of a correctional facility, a parole officer, a community supervision and corrections department officer, and a commissioned security officer. That breadth is why a large share of these charges come out of jails and detention centers rather than roadside stops — a detainee who grabs at a jailer’s pepper spray or a detention officer’s Taser during a cell extraction is squarely inside the statute.
Section 38.14 is a distinct offense, not an enhancement bolted onto resisting arrest. It can be charged on its own or stacked alongside resisting arrest, fleeing from an officer under § 38.04, assault on a public servant, or aggravated assault arising from the same incident. Because it almost always begins inside a fast, physical, adrenaline-soaked encounter, the offense report and the body-camera footage rarely tell a clean story — and that messiness is where the defense lives.
What are the penalties for a § 38.14 charge?
Section 38.14 carries two felony grades. The base offense is a third-degree felony (2–10 years and a fine up to $10,000). If the weapon taken or attempted is the officer’s firearm, the grade rises to a second-degree felony (2–20 years). Prior felony convictions can enhance the range further under § 12.42.
Section 38.14 carries two felony grades. The base offense is a third-degree felony. If the weapon taken or attempted is the officer’s firearm, the grade rises to a second-degree felony. The table below shows the punishment exposure for each grade under Penal Code Chapter 12, before any habitual-offender enhancement.
| Scenario | Classification | Prison range | Fine cap |
|---|---|---|---|
| Nightstick, stun gun, or chemical dispenser taken or attempted | Third-degree felony (§ 38.14(e)) | 2–10 years | Up to $10,000 |
| Officer’s firearm taken or attempted | Second-degree felony (§ 38.14(e)) | 2–20 years | Up to $10,000 |
| One prior felony (§ 12.42 enhancement) | Punished one level up | Varies (e.g., 3rd-degree punished as 2nd-degree) | Up to $10,000 |
| Two prior felony convictions (habitual) | Habitual-offender range | 25–99 years or life | Up to $10,000 |
Two practical points sit behind those numbers. A second-degree felony exposes a client to up to 20 years in prison, so whether the contested weapon was a firearm — as opposed to a Taser, baton, or canister — is frequently the single most consequential fact in the case. And because prior felony convictions can push a third-degree case into second-degree punishment, or a second-degree case into the 25-to-99-year habitual range under § 12.42, a client’s criminal history can matter as much as the underlying conduct.
Elements the State must prove
To convict under § 38.14, the State must prove a culpable mental state and force, a taking or attempt, that the item was a listed weapon (firearm, nightstick, stun gun, or chemical dispenser), that the person was a protected official, that the defendant knew it, and that the defendant acted with intent to harm — each beyond a reasonable doubt.
To convict under § 38.14, the State must prove each of the following beyond a reasonable doubt. We break a charge apart element by element because each one is a separate place the case can fail.
- Culpable mental state — intentionally or knowingly, and with force
- The act of taking or attempting to take the weapon must be done intentionally or knowingly under Penal Code § 6.03, and it must be done with force. An accidental contact during a fall or a flailing arm is not the same as a forceful, deliberate grab.
- Takes or attempts to take
- The defendant must take the weapon or take a substantial step toward doing so. Texas courts treat the act of seizing or pulling at a holstered weapon as evidence of an attempt, but whether the contact ever reached a listed weapon is a genuine factual question in many struggles.
- A listed weapon
- Only four items qualify: a firearm, nightstick, stun gun, or personal protection chemical dispensing device. Grabbing a radio, handcuffs, flashlight, or the officer’s clothing does not satisfy this element — and the firearm category is what separates the second-degree grade from the third-degree grade.
- From a protected official
- The person disarmed must be a peace officer, federal special investigator, correctional employee or official, parole officer, community supervision and corrections department officer, or commissioned security officer.
- Knowledge the person is an officer
- The defendant must know the individual is a peace officer or other protected official. Section 38.14(c) presumes that knowledge if the officer wore a distinctive uniform or badge or identified himself as an officer — but the presumption can be attacked where those facts are weak.
- Intention of harming the officer or a third person
- The disarming must be done with the intention of harming the officer or a third person. This is the element the State most often has to prove by inference, and it is one of the strongest points of attack for the defense.
How do prosecutors prove the case?
Most § 38.14 prosecutions are built on officer testimony and video. The State asks the jury to infer intent to harm from the act of grabbing a holstered weapon, and relies on the § 38.14(c) knowledge presumption. The defense answer is to dismantle the predicate facts and contest the inference.
Most § 38.14 prosecutions are built almost entirely on officer testimony and video. The officers describe a struggle, testify that the defendant grabbed at or pulled on a holstered weapon, and ask the jury to infer intent to harm from the act itself. Texas courts have made that inference relatively easy for the State to draw. In Maldonado v. State, the El Paso Court of Appeals observed that “the offense of taking a firearm from a peace officer offers unique evidentiary convenience” on the knowledge element, because the very act of “violently remov[ing] their weapons from their holsters” shows the defendant realized the officers were armed and, in context, were peace officers. Maldonado v. State, 902 S.W.2d 708, 716 (Tex. App.—El Paso 1995, no pet.).1
That same case illustrates a recurring trap for defendants: a defensive theory can concede the very element it is trying to dispute. The Maldonado court noted that a defendant who claims he grabbed an officer’s gun because he feared being shot has “effectively concede[d] his awareness that his purportedly anonymous pursuers were peace officers.” In plain terms — a “but I was scared of the police” explanation can hand the State the knowledge element. How a struggle is explained matters as much as what happened, which is exactly why no one should give a statement before talking to a lawyer.
On the knowledge presumption itself, the statute is explicit. Section 38.14(c) provides that the actor “is presumed to have known” the person was a peace officer “if the officer was wearing a distinctive uniform or badge indicating his employment” or “identified himself as a peace officer.” That presumption is the State’s shortcut. The defense answer is to dismantle the predicate facts — Was the officer in plain clothes? In an unmarked car? Did anyone announce “police” before hands went on the client? Where the predicate is shaky, the presumption does not carry the burden the State needs.
What defenses work against a § 38.14 charge?
There is no single playbook. The recurring defense lanes are the § 38.14(d) excessive-force defense, attacking intent to harm, contesting whether the contact reached a listed weapon, challenging knowledge under the § 38.14(c) presumption, and suppression where the underlying encounter was unlawful.
There is no single playbook; the defense follows the facts and the video. The recurring lanes below come up again and again in DFW disarming cases.
The § 38.14(d) excessive-force defense
The statute contains its own built-in defense. Section 38.14(d) makes it “a defense to prosecution under this section that the defendant took or attempted to take the weapon from a peace officer … who was using force against the defendant or another in excess of the amount of force permitted by law.” In Marroquin v. State, the San Antonio Court of Appeals held that “force in excess of the amount of force permitted by law is equitable to the term excessive force,” and that excessive force is judged using the same objectively reasonable standard used in Fourth Amendment cases. Marroquin v. State, No. 04-16-00409-CR, 2018 WL 626529 (Tex. App.—San Antonio Jan. 31, 2018, pet. ref’d) (mem. op.).2 The defendant carries only a burden of production — “some evidence” raising the issue — and once raised, the trial court must instruct the jury on it.
Marroquin also flags a strategic landmine. To get the instruction, a defendant generally must “admit to the conduct charged … and offer evidence justifying the conduct.” A defendant who flatly denies ever reaching for the weapon may forfeit the very defense that fits the facts. Deciding whether to concede the contact in order to argue justification is a judgment call that has to be made carefully, with the video and the client’s account in front of you.
Attacking intent to harm
The intent-to-harm element is often the weakest link in the State’s case. A client who pulled an arm away, tried to break a hold, or grabbed reflexively as he was slammed to the pavement did not necessarily act with intent to harm anyone — he acted to stop pain or to get free. Frame by frame, body-camera footage frequently shows movement that is defensive and chaotic rather than purposeful and weapon-directed. Where the only evidence of intent is the officer’s after-the-fact characterization of a two-second scuffle, that inference can be challenged.
Whether the contact ever reached a listed weapon
The statute protects four specific items. If the contested grab was at the officer’s belt generally, a radio, handcuffs, a flashlight, or the officer’s uniform, the listed-weapon element is not met. And because the firearm category drives the second-degree grade, contesting whether the contact was with a firearm — versus a Taser or canister — can cut a 20-year exposure down to a 10-year exposure even when some contact is undisputed.
Challenging knowledge
Where officers were in plain clothes, in an unmarked unit, or never clearly identified themselves before the encounter turned physical, the § 38.14(c) presumption rests on thin facts. The defense develops the timeline second by second to show the client could not have known — at the moment of the contact — that the person grabbing him was law enforcement.
Suppression and the lawfulness of the encounter
If the stop, detention, or entry that produced the encounter was itself unlawful, a motion to suppress can knock out evidence and reshape the State’s leverage. Texas courts treat an officer’s “lawful discharge” of duty as a recurring battleground; the Court of Criminal Appeals has repeatedly framed the question as whether “the officer was acting within his capacity as a peace officer.” Hall v. State, 158 S.W.3d 470, 474–75 (Tex. Crim. App. 2005).3 While § 38.14 does not list “lawful discharge” in its own text the way the assault-on-a-public-servant statute does, the lawfulness of the underlying police conduct still shapes both the excessive-force defense and the suppression posture of the case.
How is this charge different from resisting and assault?
People searching for “disarming a police officer” are usually describing § 38.14 conduct. The harder distinctions are between § 38.14 and the offenses prosecutors charge alongside it — resisting arrest (§ 38.03), flight from arrest under § 38.04, and assault on a public servant.
People searching for “disarming a police officer” or “grabbing a cop’s gun” are usually describing the conduct § 38.14 punishes. The harder distinctions are between § 38.14 and the offenses prosecutors often charge alongside it. The comparison table below shows where the lines fall.
| Offense | Core conduct | Typical grade |
|---|---|---|
| Taking a weapon from an officer (§ 38.14) | Forcefully taking/attempting a listed weapon with intent to harm | 3rd-degree (2nd if firearm) |
| Resisting arrest (§ 38.03) | Using force to prevent an arrest, search, or transport | Class A misdemeanor (felony if a deadly weapon is used) |
| Fleeing or detention (§ 38.04) | Fleeing from an officer attempting a lawful arrest or detention | Class A misdemeanor up to 3rd-degree |
| Assault on a public servant (§ 22.01(b)(1)) | Causing bodily injury to an officer in lawful discharge of duty | 3rd-degree felony |
The practical takeaway: a single chaotic arrest can generate a stack of charges, and § 38.14 is the felony that escalates everything. Where the conduct really amounts to pulling away or struggling — resisting-level behavior — the defense goal is often to peel the felony disarming count off the case so the client is not facing prison time for what began as a misdemeanor-level scuffle.
What happens after the arrest?
Because § 38.14 is a felony, the case follows the felony track: arrest and booking, magistration and bond within 48 hours, grand jury and indictment, pretrial and motions, then resolution by dismissal, reduction, plea, or trial.
Because § 38.14 is a felony, the case follows the felony track. Knowing the sequence helps clients and families make better decisions early, when those decisions count most.
- Arrest and booking. The client is taken into custody, usually after the same encounter that produced the charge. Statements made during and after booking are recorded; this is the moment people do the most damage to their own cases.
- Magistration. Within 48 hours, a magistrate reads the charges, sets bond, and may impose conditions. Felony bond on a disarming charge — especially a firearm-grade allegation — is frequently set high.
- Bond and release. We move quickly on bond reduction where the amount is out of line with the facts and the client’s ties to the community. Conditions can include no-contact orders and reporting requirements.
- Grand jury and indictment. A felony must be indicted by a grand jury. This is a window to present mitigating facts and, in the right case, to argue the conduct fits resisting arrest rather than felony disarming.
- Pretrial and motions. Discovery, body-camera and dash-camera review, motions to suppress, and litigation over the § 38.14(d) defense instruction all happen here.
- Resolution. Cases resolve by dismissal, reduction, plea, or trial. The earlier the defense engages, the more room there is to shape that outcome.
County-by-county practice notes
Where the arrest happened determines which felony district court hears the case. We defend § 38.14 charges across Collin, Dallas, Denton, and Tarrant Counties, each with its own docket rhythm.
Where the arrest happened determines which felony district court hears the case. We defend § 38.14 charges across the four core DFW counties, and each has its own rhythm.
- Collin County. Felony cases are handled at the Collin County Courthouse (Russell A. Steindam Courts Building) in McKinney. Collin County district courts run a structured docket, and early, organized advocacy before indictment can matter.
- Dallas County. Felonies are filed and heard at the Frank Crowley Courts Building. Dallas County’s high-volume criminal district courts move large dockets, and disarming charges frequently arrive bundled with resisting or assault counts from the same incident.
- Denton County. Cases are heard at the Denton County Courts Building in Denton. As in the other counties, the firearm-versus-other-weapon question often drives the negotiation posture.
- Tarrant County. Felony matters are handled at the Tim Curry Criminal Justice Center in Fort Worth. Tarrant County criminal district courts handle a steady stream of officer-involved struggle cases, and body-camera review is central.
The firm keeps a single office at 5899 Preston Rd, Suite 101, in Frisco, and defends cases throughout these counties from there. We do not maintain branch offices in Dallas, Denton, or Fort Worth — but appearing in those courthouses is routine.
Can a § 38.14 charge be dismissed or sealed?
Whether a disarming charge can be dismissed, reduced, or cleared depends on the facts, the video, and the client’s history. Realistic paths include pretrial dismissal or reduction to resisting arrest, expunction after an acquittal or qualifying dismissal, and nondisclosure after deferred adjudication.
Whether a disarming charge can be dismissed, reduced, or ultimately cleared from a record depends heavily on the facts, the video, and the client’s history. Realistic paths include the following.
- Dismissal or reduction before trial. Where the intent-to-harm element is weak, where the contested item was not a listed weapon, or where the § 38.14(d) defense is strong, the State may dismiss the felony count or reduce it to resisting arrest. There are no guarantees, and every case turns on its own record.
- Acquittal or dismissal, then expunction. If a § 38.14 charge ends in an acquittal or a dismissal that qualifies, the arrest may be eligible for expunction under Code of Criminal Procedure Chapter 55A, which removes the record from public databases.
- Deferred adjudication and nondisclosure. A successfully completed deferred-adjudication community supervision may, in some felony cases, open the door to an order of nondisclosure sealing the record from most public view. Eligibility is fact-specific and subject to statutory waiting periods and exclusions.
- Conviction. A final felony conviction for § 38.14 generally cannot be sealed or expunged, which is one more reason to fight the charge at the front end rather than count on cleanup later.
Collateral consequences
The sentence is only part of what a § 38.14 conviction does. A felony involving a weapon and a police encounter follows a person for years — firearm rights, immigration, employment and licensing, and housing are all affected.
The sentence is only part of what a § 38.14 conviction does. A felony involving a weapon and a police encounter follows a person for years.
- Firearm rights. A felony conviction triggers Texas firearm restrictions under Penal Code § 46.04 and the federal prohibition on firearm possession under 18 U.S.C. § 922(g).
- Immigration. For non-citizens, a felony — particularly one framed around intent to harm an officer — can carry serious immigration consequences. Anyone who is not a U.S. citizen should have immigration exposure reviewed before resolving the case.
- Employment and licensing. A felony conviction can end or block careers in healthcare, education, commercial driving, security, and any field requiring a state license or a background check.
- Housing and reputation. Felony records surface on tenant screening and standard background checks, affecting housing and everyday opportunities long after a sentence is served.
A hypothetical shows how fact-specific these cases are. Suppose a man is pulled over at night by an unmarked unit, panics, and grabs at the plainclothes officer’s belt during a takedown before he is told who the officer is. The State may charge felony disarming, but the knowledge element, the intent-to-harm element, and the lawfulness of the stop are all genuinely contestable. By contrast, a detainee who announces “I’m going to get your gun” and pulls a uniformed jailer’s holstered firearm during a cell extraction presents a far harder set of facts. The statute is the same; the defense strategy is entirely different. (These examples are illustrative only and are not based on any specific client matter.)
