Section 38.14 is charged after arrests that turn physical. It is a third-degree felony, and it is regularly added to a case where the underlying charge was a misdemeanor.
What the Statute Prohibits
A person commits an offense if the person intentionally or knowingly and with force takes or attempts to take from a peace officer, federal special investigator, employee or official of a correctional facility, parole officer, community supervision and corrections department officer, or commissioned security officer the officer's:
- firearm;
- nightstick;
- stun gun; or
- chemical dispensing device,
with the intention of harming the officer or a third person, where the actor knows or has been given reason to know the person is one of those officials and the official is lawfully discharging an official duty or the conduct is in retaliation for doing so.
"Stun gun" is defined as a device designed to propel darts or other projectiles attached to wires that, on contact, deliver an electrical pulse capable of incapacitating a person.
Penalty
A third-degree felony — 2 to 10 years in prison and a fine of up to $10,000. Section 38.14 also contains provisions addressing the use of force by an officer to maintain or regain control of a weapon.
Defenses
No intent to take, and no force. This is the defense in the great majority of cases. A person being taken to the ground, tased, or restrained moves involuntarily. Hands go toward whatever is closest — including an officer's belt. The State must prove an intentional or knowing taking or attempt, with force, and with the intention of harming someone. Reflex is none of those things, and body-camera and dash-camera video almost always establishes what actually happened.
The officer's own account versus the video. These charges are frequently written up from an officer's perception during a chaotic struggle. Slowed, frame-by-frame review regularly shows the accused's hand never reached the weapon, or was pushed there.
Knowledge of status. The State must prove the accused knew or had reason to know the person was a covered official. Plain clothes, unmarked vehicles, and chaotic scenes put that in issue.
Lawful discharge of duty. The official must have been lawfully discharging an official duty. If the stop, detention, or arrest was unlawful, that element is attackable — and where excessive force was used, Chapter 9 justifications can apply.
Which item. The statute lists specific items. Contact with a radio, a flashlight, a bodycam, or a belt generally is not within it.
Related Charges
This section usually travels with resisting arrest, evading arrest, and assault on a peace officer. Because the felony frequently rests on the weakest evidence in the file, separating it from the underlying case is often the first objective.
Related
Charged in Harris County?
Brian Foley is Board Certified in Criminal Law by the Texas Board of Legal Specialization and a former Harris County Felony Chief Prosecutor; Luis Baez is a former Trial Bureau Chief. Call or text (713) 703-1718 for a free, confidential consultation.