Being arrested is never a pleasant experience. But did you know that resisting arrest in Texas can lead to further charges? Specifically, if you don't submit to a Texas arrest, you could also face further charges. The key phrase here is “further charges” because if you are already being arrested for something—whether or not you believe you are guilty—the last thing you want to do is give law enforcement officers grounds to tack on more charges and penalties.
- What if you’re being wrongly arrested, though?
- Aren’t there certain regulations the police must follow in order to make an arrest?
- Shouldn’t you make it known if you don’t think you are being arrested legitimately?
- You can’t simply be arrested for resisting arrest… or can you?
The answers to these questions can greatly impact your future.
An Example of a Texas Resisting Arrest Charge That Turned Ugly
A few years ago, a group of Nacogdoches women hanging out in an apartment parking lot were approached by an off-duty police officer who was acting as a security guard in the apartment complex. As a result of that encounter, two of the women were placed under arrest when they resisted being arrested. So, it turns out that in Texas, you absolutely can be arrested for resisting arrest.
According to one woman in that group, her friend was arrested and facing resisting arrest charges after the incident got out of control and the off-duty police officer used excessive force while trying to arrest her. The friend explained, “The officer was belligerent. He was violent. He was disrespectful. He dehumanized my friend.”
Doesn’t seem like someone should be facing charges after dealing with that, does it? In fact, how can something seemingly so illogical happen? We’ll explain.
Before that, however, let's review how Texas law defines a resisting arrest charge and what exactly is required of officers during a Texas arrest.
How Does Texas Law Address Resisting Arrest?
Texas Penal Code Section 38.03 defines resisting arrest as intentionally preventing or obstructing a person you know is a peace officer from arresting you or another person by using force against the officer. "Using force" could include actions like struggling, pulling away, or actively fighting back - even if you believe the arrest itself is unlawful.
So what should you do if you think you're being wrongfully arrested? While it might feel unfair, the safest option is to comply with the officer's instructions and save your arguments for later in court with the help of an experienced criminal defense attorney. Physically resisting, even during an unlawful arrest, is still legally risky.
Requirements for a Proper Texas Arrest
Texas law enforcement officials have a very limited scope in their authority to place an individual under arrest. To justify a Texas arrest:
- An officer must have either personally observed a crime or must have probable cause to believe the person committed a crime, or the officer must have an arrest warrant.
- The arresting officer must support the arrest—typically through some tangible evidence that creates the necessary probable cause required for an arrest. A vague “hunch” that someone might be a criminal won’t work.
- Police are not allowed to use any excessive force beyond the minimum amount necessary to protect themselves while bringing a suspect into custody.
Additionally, police can only use the minimum force necessary to protect themselves and bring a suspect into custody. Keep in mind that even if these regulations aren't followed, you don't have the right to resist the officer at the moment of the arrest.
What Happens When Texas Arrest Regulations Aren’t Followed?
There may be times when an officer does not abide by the Texas arrest regulations. Until the circumstances are sorted out, if the person being arrested does not comply with police orders, they could face resisting arrest charges. Legally, what is resisting arrest, and when does it occur?
The Texas criminal resisting arrest section states that a person commits the offense of resisting arrest when they intentionally prevent or obstruct a person known to be a peace officer from effecting an arrest of the actor or another by using force against the officer. Texas law also grants private citizens the ability to help the police under a provision known as a citizen’s arrest under certain circumstances.
What if the Arrest isn't Supported by Law?
Texas law clearly states that an unlawful arrest or search is not grounds for defense when facing charges of resisting arrest. Basically, this means even if the arrest or search turns out to be unlawful, you still can't resist the arrest as it happens.
Although it may seem completely unfair, it’s the law in Texas. And because of this law, Texans are advised to not resist an arrest or argue with police, even if they believe the arrest is inappropriate. The best time for an arrestee to challenge an unjustified or incorrect arrest is later, most likely in court, with the help of a Fort Worth criminal defense attorney. Depending on the circumstance, it may also be appropriate to file a civil rights case against the offending law enforcement officer(s).
Let's go back to the incident involving the group of women and the off-duty officer. Dash-cam footage of the Nacogdoches incident didn’t reveal any crime. In fact, it showed nothing more than a group of women hanging out together. Because of this, the two women arrested challenged the charges in criminal court.
What are the consequences of resisting arrest in Texas?
A resisting arrest charge is considered a Class A misdemeanor for a first-time offense or a state jail felony if you’ve been previously convicted. Upon conviction, you face a one-year jail sentence and up to $4,000 in fines.
However, if a deadly weapon is used when resisting arrest, charges may be upgraded to a third-degree felony. This charge carries possible penalties of two to ten years in prison and fines of up to $10,000.
Potential Defenses That Might Apply to Your Resisting Arrest Charge
Facing any criminal charge can be overwhelming. When your freedom and hefty fines are on the line, you need to work with an experienced criminal defense lawyer to ensure your legal rights are protected. A skilled defense lawyer can explain the law and whether you have any potential defenses against the resisting arrest charge.
Depending on the circumstances, an attorney might raise one of these defenses on your behalf:
- You did not resist - video footage can help support this defense
- Your actions were justified as self-defense to protect yourself from the officer's excessive force
- Your alleged force was unintentional
If You Need to Challenge a Texas Resisting Arrest Charge, Turn to Fulgham Hampton Criminal Defense Attorneys
Every case is unique, which is why it's so important to have a skilled criminal defense lawyer evaluate the specific facts of your situation. If you're facing resisting arrest charges in Texas, the experienced resisting arrest lawyers at Fulgham Hampton are here to help. We'll thoroughly investigate the circumstances of your arrest and any underlying criminal charges to help build the strongest possible defense.
Call us at (817) 809-3039 or fill out our online contact form for a free consultation. We can help protect your rights and fight for your future.
About the Author:
Brandon Fulgham has an in-depth understanding of both Texas law and Texans themselves. Before practicing law here, he received his undergraduate degree from TCU, and his law degree from South Texas College of Law in Houston. After graduation, he worked in District Attorneys’ offices as a prosecutor, building cases designed to put people behind bars. Now, he uses that knowledge to protect the rights of people in and around Fort Worth, making sure they receive the strongest possible defense when they find themselves on the wrong side of the law. He has been recognized for his work by The National Trial Lawyers, Fort Worth Magazine, and others.