The Texas offense of Evading Arrest or Detention 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.

Evading Arrest 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. 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.

Learn more about the Evading Arrest or Detention offense 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.

How can I be charged with Evading Arrest Or Detention?

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

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.

What is the punishment for Evading Arrest Or Detention?

The Texas offense of Evading Arrest Or Detention is punished as a Class A misdemeanor unless once of the enhancements in subsection (b) applies.^[2]

The subsection (b) enhancements can apply (1) if a vehicle was used to flee the police, (2) if the person has been previously convicted for evading or (3) if someone suffered a serious bodily injury or death as a result of the offense, but there are are actually two different versions of subsection (b) currently effective. The first version is the one passed by the 82nd Legislature in H.B. 3423, and is as follows:^[3]

(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:^[4]

(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.

---

Legal References:

^1. Texas Penal Code §38.04^2. Texas Penal Code §38.04(b)^3. H.B. 3423, 82nd Texas Legislature, Ch. 839, Section 4, and Ch. 391, Section 1^4. S.B. 1416, 82nd Texas Legislature, Ch. 920, Section 3