The Texas Evading Arrest or Detention law allows police to arrest you if they believe that you intentionally fled from someone that you knew was a peace officer or federal special investigator who is lawfully attempting to arrest or detain you.
FAQs about the
Evading Arrest law in Texas
- What is the current Texas law about Evading Arrest or Detention?
- What is the penalty for a Texas Evading Arrest offense?
- When are you free to leave the police if you are being questioned, interrogated or detained?
- How can I be charged with an Evading Arrest offense in Texas?
- What is the statute of limitations for Evading Arrest in Texas?
- Can you get probation for Evading Arrest in Texas?
- What level of crime is Evading Arrest in Texas?
The Legislature did not amend this law during its 2023 regular session. However, during the third called session in 2023, it enacted an enhancement effective February 4, 2024, for situations in which the state can prove that you committed the offense in the course of a violation of Section 20.05(a)(2). The Legislature did not amend this law in 2025.
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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.
According to Texas criminal defense attorney Paul Saputo, Evading Arrest cases frequently hinge on whether the officer was lawfully attempting to arrest or detain the accused individual. By contrast, when police also accuse someone of Resisting Arrest, the case may hinge on whether the accused actually used force against the officer. The fact that police used force to make an arrest does not necessarily mean that the accused person used force to resist it.
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?
Texas Penal Code §38.04 currently defines Evading Arrest or Detention 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.
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.[2]
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 enhancements range from a state jail felony to a second degree felony.
The official Texas statutes publish two versions of subsection (b) because multiple bills amended §38.04 during the 2011 legislative session. The first version is the one passed by the 82nd Legislature in HB 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 SB 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.
Texas appellate courts have addressed the overlapping amendments and concluded that they can be harmonized.[5] Under that case law, using a vehicle while fleeing elevates the offense to a third degree felony. Texas criminal defense attorney Paul Saputo therefore reads the current Texas Evading Arrest or Detention punishment scheme as treating the use of a vehicle while fleeing as a third degree felony, despite the conflicting versions of subsection (b) that remain published in the official Texas statutes.
Amendments effective in 2024
In 2024, the Legislature amended the penalty provisions of this statute, effective February 4, 2024. The legislature created a new third degree felony enhancement 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).”[6]
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.”
When are you free to leave the police if you are being questioned, interrogated or detained?
Texas criminal defense attorney Paul Saputo has seen people arrested for Evading Arrest when they believed they were simply exercising their right to walk away from a police officer’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.” As Saputo explains, that distinction can become critical in an Evading Arrest case because the statute requires the officer to be lawfully attempting to arrest or detain the accused.
If the police tell you that you are free to leave, and they have not subsequently detained or arrested you, walking away should not constitute Evading Arrest. 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 detention 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. Texas law generally does not allow you to use force to resist an arrest or search merely because it is unlawful. However, a narrow self-defense rule can apply if the officer first uses or attempts to use greater force than necessary and the responsive force is immediately necessary for protection.
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 has been met.
What is the statute of limitations for Evading Arrest in Texas?
Misdemeanor level Evading Arrest charges have a two-year limitations period.[7] Felony level offenses follow the default felony limitations period rule, which specifies a three-year limitations period.[8]
Can you get probation for Evading Arrest in Texas?
Yes. Probation is generally available for Evading Arrest in Texas. The Texas Code of Criminal Procedure allows both judges and juries to grant community supervision, commonly called probation, for Evading Arrest, and judges may also grant deferred adjudication community supervision.[9]
However, important restrictions apply. Neither a judge nor a jury may grant community supervision if the imposed term of imprisonment exceeds 10 years.[10] Additionally, a judge 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.[11]
What level of crime is Evading Arrest in Texas?
The Penal Code classifies Evading Arrest as a Class A misdemeanor, state jail felony, third degree felony, or second degree felony, depending on the circumstances.
Learn more about the penalty range for this offense in the section above.
Legal References compiled by attorney Paul Saputo:
