Failure to Identify: Texas Penal Code §38.02

The Texas Failure to Identify law makes it illegal to give fake personal information to the police and requires you to provide your name and certain other identifying information to the police if they have arrested you or pulled you over.

Specifically, the Failure to Identify law in Texas requires you to give your name, residence address, and date of birth to a the police if they have lawfully arrested you. The Failure to Identify law also prohibits giving a fake name and other information to the police if they have detained you or if they belive you are a witness to a crime. The punishment for this offense ranges from a Class C Misdemeanor to a Class A Misdemeanor, depending on the specific allegations.

The Texas legislature codified this criminal offense in Texas Penal Code Section 38.02. In 2023, the legislature added a provision to the law requiring anyone who drives in Texas to show their driver’s license to the police if they get pulled over. In addition, if they don’t have a license, or if the officer’s requests it, drivers must give their name, driver’s license number, residence address, and date of birth to the peace officer. Learn more about the 2023 changes.

The Penal Code classifies the Texas Failure to Identify 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 Failure to Identify below.

What is the current Texas law about Failure to Identify?

Texas law currently defines the offense of Failure to Identify in Penal Code Section §38.02 as follows:^[1]

(a) A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.

(b) A person commits an offense if he intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has:

(1) lawfully arrested the person;

(2) lawfully detained the person; or

(3) requested the information from a person that the peace officer has good cause to believe is a witness to a criminal offense.

In 2023, the Texas legislature added the following subsections:^[2]

(b-1) A person commits an offense if the person:

(1) is an operator of a motor vehicle, as defined by Section 32.34, who is lawfully detained by a peace officer for an alleged violation of a law;

(2) fails to provide or display the person’s driver’s license on the officer’s request for the license; and

(3) intentionally refuses to give the person’s name, driver’s license number, residence address, or date of birth to the peace officer on the officer’s request for that information.

(b-2) For purposes of Subsection (b-1)(3), giving a peace officer a residence address that is different from the address associated with the person’s driver’s license does not constitute a refusal to give the person’s residence address in violation of that provision if the address given to the officer is the person’s actual residence address.

The Failure to Identify statute defines three different ways to break the law. Subsection (a) requires you to give your name, address and date of birth if you are placed under arrest by the police. Subsection (b) criminalizes giving false or fictitious information to a peace officer, but this only applies if you have been lawfully arrested, lawfully detained or you are a witness to a crime. Accordingly, it is not a crime to refuse to provide your name or other biographical information when you are questioned as a witness. Subsection (b-1) requires motor vehicle operators to give their drivers license and other information.

Refusing to identify yourself can mean telling an officer you are refusing to provide that information, but it can also mean not saying anything at all. For example, if you are arrested by a police officer, and he asks where you live, if you were to say “I don’t want you to know,” that would be a refusal to provide information just the same as remaining completely silent. What about your right to remain silent?

False or fictitious information means any sort of information that is not accurate, such as a nickname that is not your legal name or a home address that doesn’t actually exist. For example, if you are detained by a police officer, and he asked for your name and you said “Mr. Blonde,” when your real name was Mr. Pink, you would have provided false information and would be violating the Texas Failure to Identify law.

I was confused and did not intend to refuse to give information, or to give false information. Can I still be charged?

According to the Texas Penal Code, you must have intentionally refused to identify yourself or intentionally given false information in order to be convicted of the Failure to Identify crime. So, if you did not purposefully refuse to identify yourself or give false information, then you would not be violating the law.

The law says if I am lawfully arrested or detained. How do I know if the action by the peace officer was lawful?

If you try to argue with a police officer that your arrest was unlawful at the time you are being arrested and refuse to give your information on this basis, the officer may accuse you of the Failure to Identify offense. A “lawful arrest” is a legal concept that attorneys are trained to evaluate based on the particular facts of each arrest. Whether the arrest was lawful will be determined after the fact, and there is no “good faith” exception to the offense. So be wary of relying on the “unlawful arrest” exception at the time you are being arrested. If you believe that your arrest was unlawful, it is important to let your criminal defense attorney know so that your attorney can investigate this.

I was not detained or arrested, but a peace officer asked me questions thinking I was a witness to something. How do I know if they had good cause to believe that?

Much like knowing whether an arrest or detention was lawful, it may not a good idea to assume that a police officer did not have good cause when questioning you. If you believe that a police officer did not have good cause to question you as a witness, notify your criminal defense attorney as soon as possible so that your lawyer can investigate this.

Don’t I have a right to remain silent? Doesn’t that mean they can’t force me to say anything?

As you may have seen on television, when someone is “read their rights,” those rights include the phrase “you have the right to remain silent.” However, when this issue was brought before the Supreme Court of the United States,^[3] the Court decided that this right only applies to communication that is “testimonial,” incriminating, and compelled. The Supreme Court decided that this meant that names and biographical identifying information are not protected by the 5th Amendment right to remain silent. So your right to remain silent doesn’t extend to giving your name, address, or date of birth, and if you are arrested, then under Texas law, you must provide it.

When can the police ask for ID?

The police can generally ask you for your ID when they have “reasonable suspicion” that you have committed a crime. Unfortunately, due to the many Texas judges who have sold out the public at every opportunity, “reasonable suspicion” is essentially a meaningless standard. Courts have sent a message to police that they can ask anyone for their ID anytime, so long as the police can manufacture a reason after the fact that doesn’t even come close to passing the smell test. As a result, there are practically very few limitations in place.

In addition, the legislature added provisions to the Failure to ID law that requires all drivers in Texas to provide their driver’s license to police after a traffic stop. Learn more about the 2023 changes above.

Do I have to answer questions asked by law enforcement officers in Texas?

No you do not have to answer questions asked by law enforcement officers. Your only obligation to speak to law enforcement is to give your legal name if you are lawfully arrested, unless you are an operator of a motor vehicle, in which case you need to give your drivers license and other information.

Can I speak to a lawyer before answering any questions?

You do have the right to counsel before answering any questions, except for the obligation to identify yourself if you are arrested, except that as of 2023, if you are an operator of a motor vehicle, you are also required to provide your drivers license and certain other identifying information.

What changed in 2023?

The legislature created a subsection (b-1) and a subsection (b-2), which have the practical effect of requiring an operator of a motor vehicle who is lawfully detained by a peace officer for an alleged violation of a law to provide or display the person’s driver’s license on the officer’s request for the license; and give the person’s name, driver’s license number, residence address, and date of birth to the peace officer on the officer’s request for that information.^[4] This new law went into effect September 1, 2023.^[5]

What is the statute of limitation for Failure to Identify in Texas?

As a misdemeanor, Failure to Identify charges have a two-year limitations period.^[6]

What is the penalty for a Texas Failure to Identify offense?

If you are convicted under subsection (a), refusing to provide information after arrest, or (b-1), refusing to provide information after detention of a driver, the offense is a Class C misdemeanor, punishable by up to a $500 fine.^[7] If you are convicted under subsection (b) of the statute (giving false information), it is a Class B misdemeanor, punishable by up to 6 months in county jail and a $2000 fine.^[8]

However, if you are a fugitive from law, which means you have a valid warrant issued for your arrest,^[9] the punishment is increased by one level.^[10] Therefore a Class C misdemeanor for refusing to identify becomes a Class B, and a Class B misdemeanor for providing false information becomes a Class A misdemeanor. A conviction under subsection (b-1) is a Class B misdemeanor if you gave a false or fictitious name to the peace officer during the commission of the offense.^[11] Learn more about the penalty range for misdemeanors in the State of Texas

Another exception to the penalty range described above has to do with a minor representing that he or she is over 21. In that case, the punishment will be assessed under Section 106.07, Alcoholic Beverage Code.^[12]

Can you get probation for Failure to Identify in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Failure to Identify, and judges are also allowed to accept deferred adjudication plea deals.^[13]

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.^[14]

What level of crime is Failure to Identify in Texas?

The penalty classification for Failure to Identify ranges from a Class C Misdemeanor to a Class A Misdemeanor, 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 §38.02. This law is current as of 2024.^2. SB 1551, 88th Texas Legislature (RS), Section 1^3. United States v. Hubbell, 530 U.S. 27 (2000), at 34–38.^4. SB 1551, 88th Texas Legislature (RS), Section 1^5. SB 1551, 88th Texas Legislature (RS), Section 2^6. See Code of Criminal Procedure 12.02(a)^7. Texas Penal Code §38.02(c)(1)^8. Texas Penal Code §38.02(c)(2)^9. Texas Penal Code §38.01(5)^10. Texas Penal Code §38.02(d)^11. Texas Penal Code §38.02(d-1)^12 Texas Penal Code §38.02(e)^13. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102^14. Art. 42A.054(b), Texas Code of Criminal Procedure