Evading Arrest or Detention: Texas Penal Code §38.04

The Texas Evading Arrest Or Detention law gives police the right to arrest you if they believe you fled from someone that you knew was a peace officer (or federal special investigator), but only if that peace officer was trying to lawfully arrest you.

The law was not updated by the legislature in its regular session in 2023, but it was updated in a third special session in 2023, effective February 4, 2024, by creating an enhancement for situations in which the state can prove that you committed the offense in the course of committing an offense under Section 20.05(a)(2).

The Evading Arrest or Detention law is closely related to the offense of Resisting Arrest. Resisting Arrest requires the use of force, whereas Evading Arrest does not. Evading Arrest also requires the arrest to be lawful, whereas you can be charged with Resisting Arrest regardless of whether the arrest was lawful.

Evading Arrest cases frequently hinge on whether the officer was lawfully attempting to arrest or detain the accused individual. But sometimes the case is about whether force was actually used. Just because police use force in making the arrest doesn’t necessarily mean a person is forcefully resisting.

The Penal Code classifies the Texas Evading Arrest 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 Evading Arrest Or Detention below.

What is the current Texas law about Evading Arrest Or Detention?

The current Texas law defines the offense of Evading Arrest Or Detention in Penal Code Section §38.04 as follows:^[1]

(a) A person commits an offense if he intentionally flees from a person he knows is a peace officer or federal special investigator attempting lawfully to arrest or detain him.

When are you free to leave the police if you are being questioned, interrogated or detained?

People are often arrested for Evading Arrest when they were simply exercising their right to walk away from a police offer’s questions. Police officers will frequently tell people that they are “free to go” when they are being questioned. They might also tell you that you are being “detained.” So it is difficult to know when the police are trying to arrest you and when you have the right to leave the encounter.

If the police tell you that you are free to leave, you should not be arrested for Evading Arrest, but this happens anyway sometimes. However, if you are being “detained” or the officer tells you that you are being arrested, then the law says that you are not allowed to go. If the arrest or detainer was unlawful, then you may ultimately not be convicted of the Evading Arrest offense, but the officer very well may arrest you at that particular time. In no case, however, is force allowed to be used to prevent the officer from arresting you unless it falls into the narrow category below.

How can I be charged with an Evading Arrest offense in Texas?

You can be charged with Evading Arrest or Detention in Texas if the state’s attorneys believe that each of the elements of 38.04 as described in the section above have been met.

What is the statute of limitation for Evading Arrest in Texas?

Misdemeanor level Evading Arrest charges have a two-year limitations period.^[2] Felony level offenses have a three-year limitations period.^[3]

What is the penalty for a Texas Evading Arrest offense?

The Texas offense of Evading Arrest Or Detention is punished as a Class A misdemeanor unless one of the felony enhancements in subsection (b) or, effective 2024, subsection (b-1), applies.^[4]

The subsection (b) enhancements can apply if a vehicle was used to flee the police, if the person has been previously convicted for evading, or if someone suffered a serious bodily injury or death as a result of the offense. These felony enhancement range from the state jail felony classification to the second degree felony level.

There are are actually two different versions of the subsection (b) enhancements currently in effect. The first version is the one passed by the 82nd Legislature in H.B. 3423, and is as follows:^[5]

(b) An offense under this section is a Class A misdemeanor, except that the offense is:

(1) a state jail felony if:

(A) the actor has been previously convicted under this section; or

(B) the actor uses a vehicle or watercraft while the actor is in flight and the actor has not been previously convicted under this section;

(2) a felony of the third degree if:

(A) the actor uses a vehicle or watercraft while the actor is in flight and the actor has been previously convicted under this section; or

(B) another suffers serious bodily injury as a direct result of an attempt by the officer or investigator from whom the actor is fleeing to apprehend the actor while the actor is in flight; or

(3) a felony of the second degree if another suffers death as a direct result of an attempt by the officer or investigator from whom the actor is fleeing to apprehend the actor while the actor is in flight.

The second version is the one passed by the 82nd Legislature in S.B. 1416, and is as follows:^[6]

(b) An offense under this section is a Class A misdemeanor, except that the offense is:

(1) a state jail felony if the actor has been previously convicted under this section;

(2) a felony of the third degree if:

(A) the actor uses a vehicle while the actor is in flight;

(B) another suffers serious bodily injury as a direct result of an attempt by the officer from whom the actor is fleeing to apprehend the actor while the actor is in flight; or

(C) the actor uses a tire deflation device against the officer while the actor is in flight; or

(3) a felony of the second degree if:

(A) another suffers death as a direct result of an attempt by the officer from whom the actor is fleeing to apprehend the actor while the actor is in flight; or

(B) another suffers serious bodily injury as a direct result of the actor’s use of a tire deflation device while the actor is in flight.

Amendments effective in 2024

In 2024, the legislature amended the penalty provisions of this statute, effective February 4, 2024. The legislature created a new enhancment for cases in which the state can prove that you “committed the offense in the course of committing an offense under Section 20.05(a)(2).”^[7]

Section 20.05(a)(2) refers to the version of the Smuggling of Persons offense committed when the state can prove that you “encouraged or induced a person to enter or remain in this country in violation of federal law by concealing, harboring, or shielding that person from detection.”

Can you get probation for Evading Arrest in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Evading Arrest, and judges are also allowed to accept deferred adjudication plea deals.^[8]

Note, however, that no matter the offense, neither judges nor juries may recommend community supervision for any suspended sentence of over 10 years.^[9] 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.^[10]

What level of crime is Evading Arrest in Texas?

The Penal Code classifies Evading Arrest as a Class A misdemeanor, state jail 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.

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Legal References:

^1. Texas Penal Code §38.04. This law is current as of the 88th Legislature Regular Session.^2. Code of Criminal Procedure 12.02(a)^3. See Code of Criminal Procedure 12.01(9)^4. Texas Penal Code §38.04(b)^5. H.B. 3423, 82nd Texas Legislature, Ch. 839, Section 4, and Ch. 391, Section 1^6. S.B. 1416, 82nd Texas Legislature, Ch. 920, Section 3^7. Texas Penal Code §20.05(b-1), as enacted by SB 4, 88th Texas Legislature (SS-3), Section 11^8. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102 .^9. Art. 42A.053(c), Texas Code of Criminal Procedure^10. Art. 42A.054(b), Texas Code of Criminal Procedure