Evading Arrest in Texas | Evading in a Vehicle


What is Evading Arrest?

In Texas, the offense of evading arrest occurs when a person flees a police officer who is attempting to lawfully detain or arrest that person. That is not to say that every police encounter requires a person to stop. An officer must have reasonable suspicion to stop a person. (If an officer does not give you a reason for the stop, a prudent and respectful question would be to ask whether you are being stopped. This may seem obvious, but officers often make consensual encounters with people who could have walked away if they only knew to ask.) If an officer has reasonable suspicion to stop someone, probable cause for their arrest, or a warrant for their arrest, then fleeing from that officer is the criminal offense of evading arrest under Penal Code Section 38.04.

Under Texas Penal Code 38.04, “a person commits the 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.”  [Sorry, Bandit!]


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Elements of Evading Arrest

Evading arrest consists of four elements that must be proved by the government in order to convict. Under Tex. Pen. Code § 38.04(a), the government must show that at the time of the incident:

  • the person was acting intentionally;
  • the person fled;
  • the person knew that he was fleeing from an officer; and
  • that the officer was attempting to lawfully detain or arrest the person.

In Texas, intentionally is defined as a “conscious objective or desire to engage in the conduct or to cause the result.” Tex. Pen. Code § 6.03(a). Evading arrest does not require the use of any physical force. Using physical force would result in the offense of resisting arrest. Tex. Pen Code § 38.03(a).

Evading Arrest on Foot

Depending on the circumstances, evading arrest can be a misdemeanor or a felony can in Texas. If the person flees the police on foot, the offense is a Class A misdemeanor under most circumstances. A Class A misdemeanor in Texas is punishable by up to a year in jail and maximum $4,000 fine.

Evading Arrest on Foot with a Prior

If a person has been convicted of evading previously, the subsequent offense becomes a state jail felony. A state jail felony is punishable by up to two years in a state jail facility and a maximum $10,000 fine.

Evading Arrest in a Vehicle

Evading Arrest in a Vehicle is a state jail felony.

Evading Arrest in a Vehicle with a Prior

A subsequent charge of evading arrest becomes a third-degree felony, which is punishable by up to 10 years in prison and a maximum $10,000 fine.

A person who has evaded arrest and broken another law in the same course of conduct is subject to prosecution for both crimes.  Evading arrest itself is a continuing crime and a person cannot be charged twice for the same incident. Instead, the one evasion lasts until the person is apprehended by officers. Hobbs v. State, 175 S.W.3d 777, 781.

Punishment Enhancements for Evading Arrest

As mentioned, there are aggravating circumstances that can cause the offense to be charged as a higher degree offense. One of those aggravating circumstances is a prior conviction for the same offense. Tex. Pen. Code § 38.04(b)(1)(A).  If the actor has two aggravating factors such as a prior conviction under this section and use of a motor vehicle, the offense is then bumped up again to a third degree felony. Tex. Pen. Code § 38.04(b)(2)(A). A third degree felony will also result from the use of a tire deflation device in an attempt to evade or the serious bodily injury of another as a direct result of the police attempting to chase someone evading arrest. Tex. Pen. Code § 38.04(b)(2)(B)-(C). If the use of a tire deflation device itself causes a serious injury, a second-degree felony charge will ensue. Tex. Pen. Code § 38.04(b)(3)(B) (West 2011). If a death of another person results from the officers attempting to apprehend the evading person, a second-degree felony will be charged. Tex. Pen. Code § 38.04(b)(3)(A). A second-degree felony is punishable by up to 20 years in prison and a maximum $10,000 fine.

Contact Us:

If you or a loved one is facing a charge of evading arrest, it’s important to contact a skilled defense attorney as soon as possible. We can help. Call us today at 817-203-2220 for a free consultation. You can also contact us online.

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Benson Varghese

Managing Partner at Varghese Summersett PLLC
Benson Varghese is the founder and Managing Partner of Varghese Summersett PLLC. He is a prolific writer and has authored hundreds of articles about criminal law in Texas and at the Federal level. His articles have been featured in the Wall Street Journal, Above the Law, and have been selected as Top Blogs by the State Bar of Texas. He was named the Young Lawyer of the Year in 2019 by the Tarrant County Bar Association. Benson led the firm to become one of the 500 fastest growing businesses in the United States by Inc 500 Magazine in 2018. In the same year, the firm was named the Best Law Firm in Fort Worth by the Fort Worth Star-Telegram. The lawyers at Varghese Summersett PLLC exclusively handle criminal defense matters.
Benson Varghese