Evading Arrest or Detention — Tex. Penal Code §38.04

Class A → F2§38.04Free preview

Evading Arrest or Detention (Tex. Penal Code §38.04): Class A misdemeanor (default — on foot). Class A misdemeanor — up to 1 year county jail + up to $4,000 fine (§12.21).

Statute: Tex. Penal Code §38.04
Classification: Class A misdemeanor (default — on foot)
Grade range: Class A misdemeanor to Second-degree felony
Culpable mental state: Intentionally §38.04(a)
Last checked: November 2, 2026

Elements of the Offense

MicroPenal's summary of what the State must prove. Prove each numbered element; where alternatives are listed, any one of them is enough. Wording may be condensed. The official statute text controls.

A person
Intentionally
Flees
From a person he knows is a peace officer or federal special investigator
Who is attempting lawfully to arrest or detain him

Statutory Language

The verbatim text of Tex. Penal Code §38.04 is published on the official Texas statutes website. MicroPenal does not reproduce it here; the statute controls over this summary.Read the statute

Punishment

Class A misdemeanor — up to 1 year county jail + up to $4,000 fine (§12.21).

Enhancements

Each enhancement applies only if its conditions are proven.

Condition	Raises the offense to	Statute
Actor has been previously convicted under §38.04	State jail felony	§38.04(b)(1)
Actor uses a vehicle while in flight, including a first offense (courts apply the S.B. 1416 text; see note)	3rd degree felony	§38.04(b)(2)(A)
Actor uses a watercraft (not a vehicle) while in flight and has not been previously convicted under §38.04 (S.B. 496/H.B. 3423 text; unsettled, see note)	State jail felony	§38.04(b)(1)(B)
Actor uses a watercraft while in flight and has been previously convicted under §38.04 (S.B. 496/H.B. 3423 text; unsettled, see note)	3rd degree felony	§38.04(b)(2)(A)
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	3rd degree felony	§38.04(b)(2)(B)
Actor uses a tire deflation device against the officer while in flight (S.B. 1416 text)	3rd degree felony	§38.04(b)(2)(C)
Actor committed the offense in the course of committing smuggling of persons under §20.05(a)(2) (encouraging or inducing a person to enter or remain in this country in violation of federal law by concealing, harboring, or shielding that person from detection). Applies notwithstanding §38.04(b).	3rd degree felony	§38.04(b-1)
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	2nd degree felony	§38.04(b)(3) (S.B. 496/H.B. 3423 text); §38.04(b)(3)(A) (S.B. 1416 text)
Another suffers serious bodily injury as a direct result of the actor's use of a tire deflation device while in flight (S.B. 1416 version)	2nd degree felony	§38.04(b)(3)(B)

Exceptions, defenses and limits

Two versions of §38.04(b) were enacted in 2011 (S.B. 496/H.B. 3423 and S.B. 1416), and both still appear in the official text. Texas courts of appeals hold that evading arrest using a vehicle is a 3rd degree felony, even for a first offense: the 2011 amendments are read together, and S.B. 1416 also received the last legislative vote (Adetomiwa v. State, 421 S.W.3d 922 (Tex. App.—Fort Worth 2014, no pet.); Moorhead v. State, No. 06-15-00083-CR (Tex. App.—Texarkana Jan. 21, 2016)). The Court of Criminal Appeals upheld S.B. 1416's increase for first-time vehicle evading against a single-subject challenge (Ex parte Jones, 440 S.W.3d 628 (Tex. Crim. App. 2014)). No contrary appellate authority was found. Watercraft is unsettled: S.B. 1416 does not mention watercraft, and under the S.B. 496/H.B. 3423 text, flight using a watercraft is a state jail felony without a prior §38.04 conviction and a 3rd degree felony with one. No appellate holding on watercraft was found; confirm with your prosecutor. §38.04(b)

Statutory definitions

Vehicle: A device that can be used to transport or draw persons or property on a highway; does not include a device used exclusively on stationary rails or tracks, or manufactured housing. §38.04(c)(1); Transp. Code §541.201(23)
Watercraft: A vessel, one or more water skis, an aquaplane, or another device used for transporting or carrying a person on water, other than a device propelled only by the current of water. §38.04(c)(3); §49.01(4)

Source and verification

Official text: Tex. Penal Code §38.04 on the Texas statutes website (statutes.capitol.texas.gov).
Last checked against the official statute text on November 2, 2026.
Published by MicroPenal from reference data release 2026-11-02. The elements and punishment above are MicroPenal's summary, not the statute itself.
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