Escape: Texas Penal Code §38.06

The Texas Escape law gives police the right to arrest you if they believe you escaped from custody when you were under arrest for, lawfully detained for, charged with, or convicted of an offense, in custody pursuant to a lawful order of a court, detained in a secure detention facility, or in the custody of a juvenile probation officer for violating a juvenile court order.

The Texas legislature codified this criminal offense in Texas Penal Code Section 38.06. The legislature did not update this law in 2023. In fact, this law has not been amended since 2015.

Other Texas criminal offenses related to escaping from custody include Permitting or Facilitating Escape and Implements for Escape.

The Penal Code codifies the Texas Escape law under Title 8 “Offenses Against Public Administration,” Chapter 38 “Obstructing Governmental Operation.” Learn more about the Texas offense of Escape below.

What is the current Texas law about Escape?

The current Texas law defines the offense of Escape in Penal Code Section §38.06 as follows:^[1]

(a) A person commits an offense if the person escapes from custody when the person is:

(1) under arrest for, lawfully detained for, charged with, or convicted of an offense;

(2) in custody pursuant to a lawful order of a court;

(3) detained in a secure detention facility, as that term is defined by Section 51.02, Family Code; or

(4) in the custody of a juvenile probation officer for violating an order imposed by the juvenile court under Section 52.01, Family Code.

This law basically creates four categories of custody. The first category encompasses criminal offenses, including custody after arrest, custody after having been lawfully detained by an officer, and custody after having been charged with or convicted of an offense. For example, if you are being held in jail after an arrest and you run away from jail, then you’ve committed Escape.

A more common way to be charged with this category of Escape is by failing to report (or being late) when you are supposed to return to jail to spend the night or weekend pursuant to a night or weekend jail sentence. If you are serving nights or weekends in jail and you’re late to arrive, you will very likely be charged with Escape.

The second category of custody in the Escape offense has to do with custody ordered by a court. While this could be grouped with the first category, it is broader and would include any lawful order by a court.

The third category of custody in the Escape offense is custody in a “secure detention facility.” This secure detention facility is described in the Family Code and is basically a state (public or private) juvenile detention center or juvenile jail.^[2]

The fourth category of custody in the Escape offense applies specifically to juveniles who are in the custody of a probation officer after they have violated an order from a court. This applies only to a person who has already violated an order from a juvenile court.

What exactly does the word “escape” mean in the statute?

The term ‘escape’ is defined in Section 38.01^[3] to mean “unauthorized departure from custody or failure to return to custody following temporary leave for a specific purpose or limited period or leave that is part of an intermittent sentence, but does not include a violation of conditions of community supervision or parole other than conditions that impose a period of confinement in a secure correctional facility.”

In short, this broad definition covers any sort of ‘departure’ that is not authorized. If a police officer were to tell a person in their custody to go into a house and wait there, they are not committing the crime of escape because they are authorized for departure.

At the time, I did not intend to escape custody, or I did not realize I was being held in custody. Can I still be charged?

The statute does not require that you knew your actions constituted escape, or even that you were aware that you were being held in custody. Because the statute itself does not specifically state what was in the escapee’s mind, the law defaults to requiring that a person be reckless to the possibility that they were escaping.^[4]

How do I know if I have been lawfully detained or charged with a crime? What if I believe I have not been lawfully detained?

Information that can be used to prove that you did not meet the requirements for the crime can be used in your defense, but this information may not stop a police officer from arresting you.

What is the statute of limitation for Escape in Texas?

Misdemeanor level Escape charges have a two-year limitations period.^[5] Felony-level offenses have a three-year limitations period.^[6]

What is the penalty for a Texas Escape offense?

In general, Escape is a Class A Misdemeanor.^[7] However, in certain circumstances the classification of offense can be raised.

The crime of Escape becomes a Third Degree Felony if the person escaping is either: under arrest for, charged with, or convicted of a felony; confined or lawfully detained in a secure correctional facility or law enforcement facility; or committed to or lawfully detained in a secure correctional facility, as defined by Section 51.02, Family Code, other than a halfway house, operated by or under contract with the Texas Youth Commission.^[8]

The crime of Escape becomes a Second Degree Felony if the person escaping causes bodily injury to someone else while making their escape.^[9]

Finally, Escape can become a First Degree Felony if the person escaping causes serious bodily injury (which can include death), or uses (or threatens to use) a deadly weapon in the course of their escape.^[10]

Learn more about the range of punishments for Texas crimes here.

Can you get probation for Escape in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Escape, and judges are also allowed to accept deferred adjudication plea deals.^[11]

Note, however, that no matter the offense, neither judges nor juries may recommend community supervision for any suspended sentence of over 10 years.^[12] Also, judges may not grant community supervision after a conviction if (1) the defendant used or exhibited a deadly weapon during the commission of the felony or immediate flight thereafter and (2) the defendant used or exhibited the deadly weapon himself or was a party to the offense and knew that a deadly weapon would be used or exhibited.^[13]

What level of crime is Escape in Texas?

The Penal Code classifies Escape as a Class A misdemeanor, first degree felony, second degree felony, or third degree felony, depending on the circumstances.

Learn more about the penalty range for this offense in the section above.

Can a Texas Escape offense be reduced?

An Escape charge can be reduced to a Unauthorized Absence from Community Corrections Facility, County Correctional Center or Assignment Site charge.

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Legal References:

^1. Texas Penal Code §38.06. This law is current as of the 88th Legislature Regular Session.^2. Texas Family Code §51.02 (14) –

“Secure correctional facility” means any public or private residential facility, including an alcohol or other drug treatment facility, that:

(A) includes construction fixtures designed to physically restrict the movements and activities of juveniles or other individuals held in lawful custody in the facility; and

(B) is used for the placement of any juvenile who has been adjudicated as having committed an offense, any nonoffender, or any other individual convicted of a criminal offense.

^3. Texas Penal Code §38.01(2)^4. Texas Penal Code §6.02(c)^5. Code of Criminal Procedure 12.02(a)^6. See Code of Criminal Procedure 12.01(9)^7. Texas Penal Code §38.06(b)

^8. Texas Penal Code §38.06(c)

^9. Texas Penal Code §38.06(d)

^10. Texas Penal Code §38.06(e)

^11. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102 .^12 Art. 42A.053(c), Texas Code of Criminal Procedure^13. Art. 42A.054(b), Texas Code of Criminal Procedure