Texas Penal Code 38.03 – Resisting Arrest, Search, or Transportation
WHAT IS RESISTING ARREST, SEARCH, OR TRANSPORTATION IN TEXAS?
The Texas law against resisting arrest, search, or transportation prohibits using force against a peace officer to prevent or obstruct the peace officer from arresting, searching, or transporting either the person or someone else.
WHAT IS THE RESISTING ARREST, SEARCH, OR TRANSPORTATION LAW IN TEXAS?
Tex. Penal Code § 38.03. RESISTING ARREST, SEARCH, OR TRANSPORTATION.
(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.
(b) It is no defense to prosecution under this section that the arrest or search was unlawful.
(c) Except as provided in Subsection (d), an offense under this section is a Class A misdemeanor.
(d) An offense under this section is a felony of the third degree if the actor uses a deadly weapon to resist the arrest or search.
WHAT IS THE PENALTY CLASS FOR RESISTING ARREST, SEARCH, OR TRANSPORTATION IN TEXAS?
Resisting arrest, search, or transportation is a Class A misdemeanor, punishable by up to one year in county jail. It is enhanced to a third degree felony, which is punishable by two to ten years in prison, if the person uses a deadly weapon to resist.
WHAT IS THE PUNISHMENT RANGE FOR RESISTING ARREST, SEARCH, OR TRANSPORTATION IN TEXAS?
A person charged with Class A misdemeanor resisting arrest, search, or transportation faces up to one year in jail, and a maximum $4,000 fine. If the resisting charge is a third degree felony, it carries between two and ten years in prison, and a maximum $10,000 fine.
WHAT ARE THE PENALTIES FOR RESISTING ARREST, SEARCH, OR TRANSPORTATION IN TEXAS?
A person charged with resisting arrest, search, or transportation may be eligible for probation after a conviction, or deferred adjudication without a conviction. The period of community supervision for resisting arrest, search, or transportation charged as a Class A misdemeanor may not exceed two years, and may be up to ten years for a third degree felony.
WHAT ARE THE DEFENSES TO RESISTING ARREST, SEARCH, OR TRANSPORTATION IN TEXAS?
The justification defenses are available to a person accused of resisting arrest, search, or transportation. If a person admits to resisting, but proves he reasonably believed resisting was immediately necessary to avoid imminent harm, a jury may find the conduct was justified as necessary.
- Can a person resist arrest in Texas if police use excessive force? Texas Penal Code Section 9.31, the law of self-defense, applies in prosecutions for resisting arrest, search, or transportation if, before the person resisted, the officer or a person acting at the officer’s direction used “greater force than necessary.” The accused must also prove he reasonably believed using force to resist was immediately necessary to protect himself against the officer’s abuse.In Bowen v. State, the defendant was on trial for resisting arrest. She testified the officers kicked her legs out from under her, and pinned her to the ground with their knees on her back. She said she only struggled because she could not breathe, felt her arm pop out of its socket, and was screaming for help. She kicked one of the officers when they lifted her up, but claimed it was only because they were hurting her and she was trying to regain her balance. The defendant was entitled to both a self-defense and necessity defense instruction under these circumstances.
- Can a person resist an illegal arrest in Texas? Texas law clarifies that an unlawful search or arrest—one unsupported by reasonable suspicion or probable cause—is “no defense.” In other words, even if a person believes a police officer has no probable cause for the arrest, the person is not legally permitted to fight with or use force against the officer (as long as the officer is not using excessive force).
- What are examples of resisting arrest, search, or transportation in Texas? To convict a person of resisting, the State must show the person used force. Courts have interpreted this as any act of violence, physical aggression, or an immediate threat thereof. The force must also be directed at the arresting officer.In Haliburton v. State, the Second Court of Appeals of Texas upheld a resisting conviction for a defendant who kicked at an officer without making contact.
However, in Dobbs v. State, the Texas Court of Criminal Appeals decided that holding a gun to one’s own head to prevent officers from arresting him is not sufficient to support a resisting conviction.
WHAT IS THE STATUTE OF LIMITATIONS FOR RESISTING ARREST, SEARCH, OR TRANSPORTATION IN TEXAS?
The limitation period for resisting arrest, search, or transportation categorized as a Class A misdemeanor is two years. If it is a third degree felony, the limitation period is three years.
RESISTING ARREST, SEARCH, OR TRANSPORTATION IN TEXAS
Resisting arrest, search, or transportation requires using some force in opposition to, in the direction of, or in contact with an officer in order to prevent an arrest, search, or transport. However, Texas courts recognize the importance of protecting police officers in most situations, especially when they are attempting to effectuate a legal arrest.
TEXAS RESISTING ARREST, SEARCH, OR TRANSPORTATION COURT CASES
The case law regarding resisting arrest, search, or transportation in Texas shows the willingness of Texas courts to accept minimal uses of “force” to support a resisting conviction.
- In Finley v. State, the defendant was convicted of resisting arrest for “pulling away” from officers attempting to arrest him. The officers described the defendant’s conduct as clenching up, and trying to pull his arm away. Thus, even though the defendant was not violent or physically aggressive towards the officer, the Texas Court of Criminal Appeals held that his act of pulling away was “in opposition or hostility to” the arresting officer. That constitutes sufficient force as required by the statute.
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WE FIGHT FOR DISMISSAL
DRIVING WHILE INTOXICATED .15
Driving facts involved failing to maintain a single lane and speeding. Client refused breath test and forced law enforcement to obtain search warrant for blood. Blood test result was not used after challenge from Defense, and State waived and abandoned charge.
DRIVING UNDER THE INFLUENCE
Client was a college student, worried about the collateral consequences of an alcohol offense. After negotiation and review of the traffic stop, the case was dismissed. Client received no criminal conviction. The charge was later expunged and deleted from client’s record.
DRIVING WHILE INTOXICATED .15+
Client was involved in minor accident. Client was at fault in accident. A young executive, client was concerned that a criminal conviction for DWI would result in termination. After review of the traffic stop, it was clear the officer lacked probable cause for arrest. State eventually dismissed DWI charge. Client received no criminal conviction.
Client, a military veteran, was facing up to one year in jail. State could not prove intoxication by alcohol, and was prepared to proceed on loss of use by marijuana. After challenging the State to prove that marijuana was ingested at or near time of driving, and that marijuana impaired client’s driving, the State dismissed the case on the day of trial.
DRIVING UNDER THE INFLUENCE
Driving facts involved a false claim by police that taillight was out. After challenging the reasonable suspicion for the traffic stop, the State was forced to dismiss the case when video did not match police report. Client has since expunged arrest, and has no criminal record.
DRIVING UNDER THE INFLUENCE
Client is a public school teacher and faced immediate termination upon conviction. The facts of the case were bad. State was unwilling to budge in negotiation, and matter was set for trial – the last shot at avoiding a conviction and preserving client’s livelihood. State was forced to dismiss on day of trial. Client has no criminal record, and has since expunged the DWI arrest.
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