This page was written, edited, reviewed & approved by Brian LaVine following our comprehensive editorial guidelines. Brian LaVine the Founding Partner, 10+ years of legal experience as criminal defense attorney.
At LaVine Law Firm, our Austin resisting arrest lawyer defends clients who face criminal charges after tense encounters with law enforcement in Travis County and across Central Texas. Resisting arrest charges often arise from confusing, high-stress situations where a person believes they did nothing wrong. The Austin Police Department and Travis County officers file these charges thousands of times each year, and resisting arrest is one of the most common "add-on" offenses in the Texas criminal justice system. Being charged does not mean being guilty. The circumstances of the arrest matter more than the charge itself.
A resisting arrest conviction in Austin carries real consequences: a permanent criminal record, jail time, fines, and lasting damage to your employment and housing prospects. Many of these charges are subjective, and a skilled legal team can challenge the officer's account and expose weaknesses in the prosecution's case. We built our law office to do exactly that. This page explains the law surrounding resisting arrest in Texas, the defense strategies we use, and why LaVine Law Firm is the right choice when your future is at stake.
We approach every resisting arrest case with the understanding that these charges are often subjective. What an arresting officer calls "resistance" is not always what the law defines as resistance under the Texas Penal Code. Our criminal defense attorneys dig into the facts of every encounter to separate what happened from what the officer claimed happened.
Our legal team knows the Travis County courts, the Austin Police Department procedures, and the local prosecutors who handle these cases. That local knowledge gives our clients a real advantage during negotiations and at trial. We handle cases at every stage of the legal process, from the initial case review through pre-trial motions and trial defense. You work with your attorney, not a paralegal. We keep communication clear and direct so you always know where things stand. We also offer payment plans to make quality legal representation accessible.
"Resisting arrest" is a specific legal term under Texas law with defined elements that the prosecution must prove. Many people charged with this offense were confused, frightened, or acting on instinct, unaware that their actions could be considered criminal. The line between lawful non-compliance and criminal resistance is often blurry, and resisting arrest charges in Texas deserve scrutiny.
Texas Penal Code Section 38.03 defines resisting arrest as a criminal offense. The prosecution must prove three elements to secure a conviction. First, the defendant acted with the intent to prevent or obstruct. Second, the person obstructed was a peace officer or someone acting in the officer's presence. Third, the officer was attempting to carry out an arrest, a legal search, or the transportation of the defendant or another person.
The keyword in the statute is "intentionally." Accidental or reflexive movements do not meet this standard. The law does not require physical violence; even pulling away or going limp can be charged under this provision. A standard resisting arrest charge is a Class A misdemeanor, punishable by up to 1 year in county jail and a $4,000 fine. If the defendant uses a deadly weapon during the resistance, the charge jumps to a third-degree felony, carrying 2 to 10 years in prison. One critical detail: the arrest must be lawful for the charge to hold. Unlawful arrests are a key defense point that our criminal defense lawyers raise in court.
Texas law treats resisting arrest and evading arrest as two separate offenses, and the distinction shapes both charges and penalties. Resisting arrest under § 38.03 involves physical opposition or obstruction during an arrest already in progress. Evading arrest under § 38.04 involves fleeing from a person the defendant knows is a peace officer attempting a lawful arrest or detention.
The penalties for evading arrest depend on the circumstances:
Both charges are filed together in many cases, or stacked alongside other offenses. This dual-charge situation complicates the defense strategy and raises the stakes for the defendant. At LaVine Law Firm, we handle both resisting and evading arrest cases across Austin and Travis County.
Resisting arrest is one of the most common secondary charges in the criminal justice system. Prosecutors stack it alongside DWI, drug possession, domestic violence, assault, or drug charges to increase pressure on the defendant. This is a well-known prosecutorial tactic designed to push defendants toward accepting a plea deal.
The practical impact is significant. Even if the underlying charge is weak, a resisting arrest charge on top of it raises the stakes and complicates negotiations. For example, a person stopped for a DWI who struggles during field sobriety testing may face both DWI and resisting arrest charges. A defendant arrested for possession of marijuana who pulls away from the arresting officer may face drug offenses and a resisting arrest charge at the same time. At LaVine Law Firm, we evaluate all charges together and build a unified defense strategy. We never treat each charge in isolation because prosecutors do not file them in isolation.
Resisting arrest charges depend on the specific facts of each encounter. A strong defense comes down to examining what happened in the moments before and during the arrest. Officer accounts are not accepted as truth without challenge; they must be tested against the evidence. Our criminal defense attorneys know where to look.
Under Texas law, a person cannot be convicted of resisting arrest if the underlying arrest was unlawful. An arrest is unlawful when the officer had no probable cause, no reasonable suspicion for the initial stop, exceeded lawful authority, or violated the defendant's constitutional rights. This defense requires a careful review of everything that led up to the arrest, not just the moment of resistance.
Body camera footage, dashcam recordings, witness accounts, and police reports help us reconstruct the full sequence of events. We file motions to suppress evidence obtained during unlawful stops or arrests. The Fourth Amendment to the U.S. Constitution protects individuals against unreasonable searches and seizures, and we enforce that right. If the court finds the arrest was unlawful, the resisting arrest charge cannot stand. Any evidence gathered during the encounter may also become inadmissible, thereby weakening or destroying the prosecution's entire case.
Texas Penal Code § 38.03 requires intentional conduct. Accidental, reflexive, or fear-driven responses do not meet this standard. The practical reality is that when someone is grabbed, tackled, or restrained without warning, involuntary physical reactions are natural. These reactions do not constitute intentional resistance under the law.
Several scenarios support a lack-of-intent defense:
The prosecution must prove beyond a reasonable doubt that the resistance was intentional. We challenge this element in every case where the facts support it. You are innocent until proven guilty, and we hold the state to that burden.
Texas law has historically limited a person's ability to use force to resist an arrest, even an unlawful one. However, excessive force by an officer changes the analysis. Under Texas Penal Code § 9.31(c), if an arresting officer uses unreasonable or excessive force during an arrest, the defendant's response may be justified under the principles of self-defense.
Excessive force includes unnecessary escalation, use of weapons without justification, and physical brutality beyond what was needed to carry out the arrest. Building this defense requires strong documentation: medical records showing injuries, photographs, witness testimony, and body camera footage. Civil rights issues may also arise in these cases. Our law office advises clients on both criminal defense and any potential civil remedies. Preserving evidence right away is critical. Contact LaVine Law Firm as soon as possible after the incident so we can secure the documentation needed to protect your legal rights.
A conviction for resisting arrest reaches far beyond the courtroom. The criminal record alone creates barriers that affect every part of your life. Understanding these consequences is the first step toward fighting back.
A Class A misdemeanor conviction stays on your permanent record and is visible to employers, landlords, and licensing boards. If the charge involves a deadly weapon enhancement, the felony conviction strips voting rights and firearm rights and creates major employment barriers. Background checks for jobs requiring security clearance, government positions, or professional licenses in healthcare, law, education, and finance will flag the conviction. Landlord screenings and subsidized housing applications are also affected.
For non-citizens, the consequences can be even more severe. Misdemeanor and felony convictions can trigger deportation proceedings or bar naturalization. A conviction can also undermine your credibility in future civil or criminal proceedings. Avoiding these consequences starts with the right legal representation from the moment of arrest. LaVine Law Firm is ready to help.
If you have been charged with resisting arrest, the steps you take right now can shape the outcome of your case. Acting fast protects your legal rights and gives your attorney the best chance to build a strong defense. Here is what you should do:
Clients choose our firm because we combine aggressive advocacy with deep knowledge of the Travis County and Hays County courts. We know the Austin Municipal Court, the district courts, and the prosecutors who handle resisting arrest and related misdemeanor and felony cases. This familiarity helps us anticipate how the prosecution will approach your case and position your defense for the strongest outcome.
We investigate every case from day one. Our process includes:
Our felony defense attorneys and DWI attorneys handle the full range of charges that often accompany resisting arrest, including:
Communication is honest and direct throughout every case. Our Austin criminal defense attorney team is committed to defending the rights of every client we serve.
Resisting arrest is a Class A misdemeanor under the Texas Penal Code. It becomes a third-degree felony only when the defendant uses a deadly weapon during the resistance.
Yes. Going limp, pulling away, or refusing to comply with commands can qualify as resisting arrest under Texas Penal Code Section 38.03. Physical violence is not required.
Resisting arrest involves physical obstruction during an arrest. Evading arrest means fleeing from an officer. Each offense carries different charge levels and penalties under Texas law.
Yes. Charges can be reduced or dismissed based on an unlawful arrest, lack of intent, insufficient evidence, or successful negotiation by a criminal defense attorney during the legal process. Learn more about how charges can be dropped after an arrest in Texas.
Yes. Even a Class B misdemeanor or Class A misdemeanor conviction creates a permanent record. An experienced attorney evaluates your defenses and works to minimize or eliminate the charge through deferred adjudication or dismissal.
Stay calm. Do not speak to the police without an attorney. Document everything you remember about the encounter. Contact LaVine Law Firm right away for a free case review.
Speak to a Criminal Defense Attorney Now
A resisting arrest charge can follow you for years. With the right defense, you have options, and LaVine Law Firm is here to help you use them. Our criminal defense lawyers provide aggressive, personalized representation for clients across Austin, Travis County, and surrounding Central Texas communities. We understand what is at stake, and we fight to protect your future.
Contact us today for a free, confidential case evaluation. We respond fast, and there is no obligation to retain our firm. Every conversation is protected by strict confidentiality. Whether you face a misdemeanor or felony charge, our legal team is ready to act. Contact us now for your free consultation. The Texas legislature sets the laws, but your defense starts with the right attorney. Let LaVine Law Firm stand with you.
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