Use of Force & Arrest · §22.01

Assault

Assault includes (1) intentionally/knowingly/recklessly causing bodily injury, (2) intentionally/knowingly threatening another with imminent bodily injury, or (3) intentionally/knowingly causing physical contact known/reasonably believed to be regarded as offensive or provocative. Family-violence and public-servant enhancements apply.

The base classification is Class A misdemeanor (default; bodily injury), with possible enhancements depending on the conduct, victim, location, or prior history of the actor.

Key points

Intentionally, knowingly, or recklessly
Causes bodily injury to another (including spouse)

Texas Law — Charge Details

Class C → 2nd Degree Felony

Offense

Assault

Statute

Tex. Penal Code §22.01

Classification

Class A misdemeanor (default; bodily injury)

Potential Penalty Enhancements

If this condition applies…	Charge escalates to
Against public servant lawfully discharging duty	3rd degree felony
Family violence + prior conviction listed in §22.01(b)(2)(A) (ch. 22, ch. 19, §20.03, 20.04, 21.11, 25.11, or FV-based §25.07/§25.072)	3rd degree felony
Family violence by impeding breath/circulation (strangulation)	3rd degree felony
Strangulation + prior §22.01 FV-type	2nd degree felony
Against a person the actor knows is a peace officer or judge lawfully discharging an official duty (or in retaliation)	2nd degree felony
Offensive contact (§22.01(a)(3)) against an elderly or disabled individual	Class A misdemeanor

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Worked examples

Worked example 1

Restrictions on choke holds / neck restraints in Texas departments are typically governed by:

No restrictions
Agency policy — many Texas agencies have prohibited or sharply restricted neck restraints (vascular and respiratory) absent deadly-force justification, in part following federal trends after George Floyd; Texas has not enacted a single statewide statutory ban on all neck restraints, but §22.01(b)(2)(B) recognizes the lethality of impeding breath/circulation Correct
Federal statute prohibits all uses
Required in every arrest

Why: Texas has not adopted a single statewide statutory prohibition on all neck restraints. Many large departments (DPS, Houston, Dallas, Austin, San Antonio) have policies sharply restricting neck restraints to deadly-force-justified scenarios. The Penal Code's strangulation-FV felony (§22.01(b)(2)(B)) reflects the lethality of breath/circulation impedance.

Statute: Agency policy; Tex. Penal Code §22.01(b)(2)(B); TCOLE training

Worked example 2

SCENARIO. A suspect is in handcuffs and not resisting. An officer kicks him. Apply Texas / federal law.

Lawful — suspect must be punished
Unlawful — gratuitous force on a restrained, non-resisting subject is excessive force under Graham (no immediate threat, no active resistance, no severity-of-crime justification once secured); criminal liability under §22.01 (assault), and §1983 civil liability likely Correct
Lawful if the suspect spits
Lawful with backup approval

Why: Force on a handcuffed, non-resisting subject is well outside the Graham factors and is gratuitous. It exposes the officer to criminal liability (assault on a person under custody, official oppression) and civil §1983 liability.

Statute: Graham v. Connor; Tex. Penal Code §22.01(b)(1)

Statutory definitions for this topic

Imminent Tex. Penal Code §9.32 (deadly force) / §22.01 (assault): Near at hand; threatening to occur immediately; on the point of happening. The threat must be present, not merely possible at some future time.