Hindering Apprehension or Prosecution: Texas Penal Code §38.05

The Texas Hindering Apprehension or Prosecution law gives police the right to arrest you if they believe you have deliberately helped someone else avoid being arrested, detained, or prosecuted by local authorities.

The punishment for this offense ranges from a Class A Misdemeanor to a Third Degree Felony, depending on the specific allegations and the status of the person who is being sought.

The Texas legislature codified this criminal offense in Texas Penal Code Section 38.05. The law was not updated in 2023. In fact, this law has not been amended since 2007.

The Penal Code classifies the Texas Hindering Apprehension or Prosecution law under Title 8 “Offenses Against Public Administration,” Chapter 38 “Obstructing Governmental Operation.” The crimes in this chapter generally relate to actions taken that work directly against government processes, such as administration of justice or incarceration. Learn more about the Texas offense of Hindering Apprehension or Prosecution below.

What is the current Texas law about Hindering Apprehension or Prosecution?

The current Texas law defines the offense of Hindering Apprehension or Prosecution in Penal Code Section §38.05 as follows:^[1]

(a) A person commits an offense if, with intent to hinder the arrest, prosecution, conviction, or punishment of another for an offense or, with intent to hinder the arrest, detention, adjudication, or disposition of a child for engaging in delinquent conduct that violates a penal law of the state, or with intent to hinder the arrest of another under the authority of a warrant or capias, he:

(1) harbors or conceals the other;

(2) provides or aids in providing the other with any means of avoiding arrest or effecting escape; or

(3) warns the other of impending discovery or apprehension.

This offense groups behaviors into three categories. One category makes it illegal to harbor or conceal someone who is attempting to avoid arrest or detention. This includes any action that prevents law enforcement from locating such an individual. For example, letting someone who is fleeing arrest stay in your basement would be an offense. You might also face prosecution if you told a police officer you haven’t seen the person they are searching for when you know that they are nearby.

Another category deals with helping someone else evade arrest by providing them with aid. This could include any active steps you might take in helping them get away. For example, giving someone your car to escape the police would be an obvious example. Alternatively, giving someone money so they can buy a train ticket to leave the state would be another example. Even telling someone that you know the bus out of town leaves in an hour might be considering an offense.

The final category is warning someone of impending discovery or apprehension. For example, if you discover that police officers are looking for someone and you let that person know that the police are on the way, you might be charged. In general, providing any information that lets someone know that they may be discovered or apprehended might fall under this section of the criminal offense.

The key to whether the state can obtain a conviction is how they would prove your intent. This offense not only requires one of the behaviors described above, but also an intent to hinder arrest.

At the time, I did not intend to help the person evade arrest or prosecution. Can I still be charged?

The law requires that you intentionally helped the person evade arrest or prosecution. That means if it wasn’t you specific goal to help avoid arrest/prosecution, you would not be guilty of the charge. For example, if someone came to you and asked to stay the night because their apartment was being fumigated, when in reality they were trying to avoid prosecution, you would not be guilty as long as you did not know that person was being sought and it wasn’t your goal to assist them in evading prosecution.

The only reason I warned the other person of impending arrest or prosecution was to convince them to turn themselves in. Can I still be charged?

The law provides a defense to prosecution if you can show that the purpose of giving someone the warning was to “bring them into compliance with the law,” which essentially means providing them the information so that they can reveal themselves or turn themselves in.^[2] Because the statute specifically states this as a defense, you and your criminal defense attorney must raise this issue as a defense to show that the purpose of your warning was to effect such an outcome.

I wasn’t aware that the person I helped was being pursued for a felony. Can I still be charged at the felony level for this crime?

According to the statute,^[3] the state must prove that you knew that the person you assisted was being charged with, arrested for, or prosecuted for a felony crime.

What is the statute of limitation for Hindering Apprehension or Prosecution in Texas?

Misdemeanor level Hindering Apprehension or Prosecution charges have a two-year limitations period.^[4] Felony level offenses have a three-year limitations period.^[5]

What is the penalty for a Texas Hindering Apprehension or Prosecution offense?

By default, the crime of Hindering Arrest or Prosecution is a Class A Misdemeanor. However, the statute elevates the crime to a Third Degree Felony if the person that is being aided is charged with, under arrest for, or being prosecuted for a felony crime. Learn more about the range of punishments for Texas crimes here.

Can you get probation for Hindering Apprehension or Prosecution in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Hindering Apprehension or Prosecution, and judges are also allowed to accept deferred adjudication plea deals.^[6]

Note, however, that 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.^[7]

What level of crime is Hindering Apprehension or Prosecution in Texas?

The Penal Code classifies Hindering Apprehension or Prosecution as either a Class A misdemeanor or third degree felony, depending on the circumstances.

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

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Legal References:

^1. Texas Penal Code §38.05. This law is current as of the 88th Legislature Regular Session.^2. Texas Penal Code §38.05(b)^3. Texas Penal Code §38.05(d)^4. Code of Criminal Procedure 12.02(a)^5. See Code of Criminal Procedure 12.01(9)^6. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102 .^7. Art. 42A.054(b), Texas Code of Criminal Procedure