Evading arrest or detention is a Class A misdemeanor in Texas when a person flees on foot with no prior conviction, and it becomes a felony when a vehicle or watercraft is used, when the person has a prior evading conviction, or when someone is seriously injured or killed during the pursuit. The statute is unusual: the official code prints two competing versions of the punishment subsection, both enacted in 2011, and they do not agree about a first offense committed in a vehicle. The offense is defined at Texas Penal Code Section 38.04.
What are the elements of evading arrest in Texas?
Section 38.04(a) says a person commits the offense if he intentionally flees from a person he knows is a peace officer or a federal special investigator attempting lawfully to arrest or detain him. Four things have to line up. The flight has to be intentional, the person has to know the pursuer is an officer, the officer has to be attempting an arrest or detention, and that attempt has to be lawful.
That last element is the one most often overlooked. If the attempted detention was not lawful — if the officer lacked reasonable suspicion to stop the person in the first place — then an element of the offense is missing, regardless of what the person did afterward. Walking away from an officer who has no legal basis to detain you is not evading arrest.
Why does the statute have two versions of subsection (b)?
In 2011 the 82nd Legislature passed three separate bills amending Section 38.04, and two irreconcilable texts of the punishment subsection made it into the code. Both are still printed on the official statute page today. One version comes from House Bill 3423 and Senate Bill 496; the other comes from Senate Bill 1416. They have never been merged.
The versions agree that the base offense is a Class A misdemeanor, that a prior conviction under the section makes it a state jail felony, that serious bodily injury to another as a direct result of the officer’s attempt to apprehend makes it a third degree felony, and that a death makes it a second degree felony. They disagree about a first offense committed in a vehicle. Under the House Bill 3423 version, using a vehicle or watercraft in flight with no prior conviction is a state jail felony, and it is a third degree felony only if the person also has a prior. Under the Senate Bill 1416 version, using a vehicle in flight is a third degree felony outright, and that version separately covers the use of a tire deflation device against the officer.
For a person charged with a first-time evading in a motor vehicle, that unresolved conflict is the difference between a state jail felony and a third degree felony — between a maximum of two years in a state jail and a maximum of ten years in prison. It is a question worth raising in any such case.
What is the punishment range for evading arrest?
| Conduct | Offense grade | Punishment range |
|---|---|---|
| Fleeing on foot, no prior conviction under this section | Class A misdemeanor | Up to one year in county jail, a fine up to $4,000, or both (Sec. 12.21) |
| Prior conviction under this section | State jail felony | 180 days to 2 years in a state jail, plus a fine up to $10,000 (Sec. 12.35) |
| Using a vehicle or watercraft in flight, no prior conviction | State jail felony or third degree felony, depending on which version of subsection (b) is applied | Either 180 days to 2 years in a state jail, or 2 to 10 years in TDCJ, plus a fine up to $10,000 |
| Using a vehicle or watercraft in flight, with a prior conviction | Third degree felony | 2 to 10 years in TDCJ, plus a fine up to $10,000 (Sec. 12.34) |
| Another person suffers serious bodily injury as a direct result of the officer’s attempt to apprehend | Third degree felony | 2 to 10 years in TDCJ, plus a fine up to $10,000 (Sec. 12.34) |
| Using a tire deflation device against the officer during the flight | Third degree felony under the Senate Bill 1416 version | 2 to 10 years in TDCJ, plus a fine up to $10,000 (Sec. 12.34) |
| Another person suffers death as a direct result of the officer’s attempt to apprehend | Second degree felony | 2 to 20 years in TDCJ, plus a fine up to $10,000 (Sec. 12.33) |
| Committed in the course of an offense under Section 20.05(a)(2), under subsection (b-1) | Third degree felony | 2 to 10 years in TDCJ, plus a fine up to $10,000 (Sec. 12.34) |
Section 38.04 assigns the grades; the punishment ranges come from Chapter 12 of the Penal Code. Note that the injury and death provisions are written in terms of a direct result of the officer’s attempt to apprehend, which means they can reach injuries caused by the pursuing officer’s own vehicle, not only by the person fleeing.
What do the terms in the statute mean?
Subsection (c) borrows its definitions from elsewhere. Vehicle has the meaning assigned by Section 541.201 of the Transportation Code. Tire deflation device has the meaning assigned by Section 46.01 of the Penal Code. Watercraft has the meaning assigned by Section 49.01. Subsection (d) states that a person subject to prosecution under both this section and another law may be prosecuted under either or both, which is why an evading charge frequently rides alongside a DWI, a resisting charge, or a traffic offense.
Charged with evading arrest in Harris County?
Whether the detention was lawful, whether the person actually knew the pursuer was an officer, and which version of the punishment subsection applies are all questions with real answers, and in a vehicle case the last one alone can move the exposure from two years to ten. Call Blass Law at (713) 664-4000 or request a case evaluation.
Related: Houston evading arrest lawyer, Texas Penal Code Section 49.04, driving while intoxicated, and what is a Class A misdemeanor in Texas.
Reviewed by Jay Blass Cohen, founder of Blass Law PLLC — ACS-CHAL Forensic Lawyer-Scientist, certified Drug Recognition Expert, and SFST instructor, serving Houston since 2009. This article is general information, not legal advice for your situation. Prior results do not guarantee a similar outcome.