Failure to Identify

Texas Criminal Law

The Failure to Identify crime in the state of Texas requires you to provide police officers your name and certain other identifying information when you have been arrested.

It also gives police the right to arrest you if they have lawfully arrested or detained you or if you are a witness to a crime and you give a fake name to the officer. The punishment for this offense ranges from a Class C Misdemeanor to a Class A Misdemeanor, depending on the specific allegations. Learn more detailed information about the Failure to Identify offense below.

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Failure to Identify is classified in the Texas Penal Code under Title 8 “Offenses Against Public Administration,” Chapter 38 “Obstructing Governmental Operation.” The crimes in this category are ones that generally relate to actions taken that work directly against government processes, such as administration of justice or incarceration.

What is the current Texas law about Failure to Identify?

The current Texas law 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.

The Failure to Identify statute has two different facets. First, Texas law requires you to give your name, address and date of birth if you are placed under arrest by the police. Secondly, it 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.

Note that it is not a crime to refuse to provide your name or other biographical information when you are questioned as a witness.

Refusing to identify yourself can mean that you tell an officer you refuse to provide that information, or even just 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.

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 if your real name is William and you said “John Doe,” you would have provided false information and would be guilty of the Failure to Identify offense.

What is the penalty range for Failure to Identify?

If you are charged under Section (a) of the statute (which refers to refusing to provide information), it is a Class C misdemeanor, punishable by up to a $500 fine.[2] If you are charged under Section (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.[3]

However, if you are a fugitive from law, which means you have a valid warrant issued for your arrest,[4] the punishment is increased by one level.[5] 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. Learn more about the penalty range for misdemeanors in the State of Texas

Another possible 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.[6]

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 intentionally refuse to identify themselves or intentionally give 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 should explain this to your criminal defense attorney so that you can help defend against this charge.

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,[7] 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 is 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.

Frequently Asked Questions About Failure To Identify in Texas

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 pathetic Texas judges that have practically 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 they can manufacture a reason after the fact that doesn’t even come close to passing the smell test. There are very few limitations in place.

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.

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.

^1. Texas Penal Code §38.02^2. Texas Penal Code §38.02(c)(1)^3. Texas Penal Code §38.02(c)(2)^4. Texas Penal Code §38.01(5)^5. Texas Penal Code §38.02(d)^6. Texas Penal Code §38.02(e)^7. United States v. Hubbell, 530 U.S. 27 (2000), at 34–38.

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