Quick reference
Texas Penal Code § 38.04 governs Evading Arrest or Detention in Texas. The statute can be read in full at Texas Statutes via Texas Legislature Online. Punishment ranges and defenses depend on the specific subsection and circumstances of each case. Below is L and L Law Group's plain-English summary plus the strategic considerations we use when defending Evading Arrest charges.
What Texas Penal Code § 38.04 says
Section 38.04 of the Texas Penal Code is the controlling Texas statute for Evading Arrest. The statute defines what conduct is criminalized, what mental state (mens rea) is required, and what penalties apply. The full statutory text is published at capitol.texas.gov and updated each odd-numbered legislative session.
Like every Texas criminal statute, § 38.04 must be read together with:
- Texas Penal Code Chapter 6 — culpable mental states (intentional, knowing, reckless, criminally negligent)
- Texas Penal Code Chapter 9 — justification defenses (self-defense, defense of others, necessity)
- Texas Penal Code Chapter 8 — affirmative defenses (insanity, duress, mistake)
- Texas Penal Code Chapter 12 — punishment classifications and ranges
- Texas Code of Criminal Procedure Chapter 42A — community supervision (probation)
Texas punishment classifications
The punishment for an offense under § 38.04 depends on the specific subsection charged and any enhancement allegations in the indictment. Texas Penal Code Chapter 12 sets the punishment ranges:
| Classification | Range | Authority |
|---|---|---|
| Class C misdemeanor | Fine up to $500 (no jail) | § 12.23 |
| Class B misdemeanor | Up to 180 days county jail; up to $2,000 fine | § 12.22 |
| Class A misdemeanor | Up to 1 year county jail; up to $4,000 fine | § 12.21 |
| State jail felony | 180 days - 2 years state jail (no parole); up to $10,000 fine | § 12.35 |
| 3rd-degree felony | 2-10 years TDCJ; up to $10,000 fine | § 12.34 |
| 2nd-degree felony | 2-20 years TDCJ; up to $10,000 fine | § 12.33 |
| 1st-degree felony | 5-99 years or life TDCJ; up to $10,000 fine | § 12.32 |
| Capital felony | Life without parole or death penalty | § 12.31 |
Enhancements under § 12.42 (prior felony convictions) and § 12.43 (prior misdemeanor convictions) can move the punishment range upward. The State must plead enhancement paragraphs in the indictment to use them at sentencing.
How L and L Law Group defends Evading Arrest cases
Every § 38.04 prosecution requires the State to prove each element of the offense beyond a reasonable doubt. The defense lawyer's job is to identify where the State's proof falls short. Common defense approaches in Evading Arrest cases:
- Constitutional defenses: Fourth Amendment suppression of evidence obtained through illegal search and seizure; Fifth Amendment / Miranda suppression of statements; Sixth Amendment right to counsel issues.
- Factual defenses: Mistaken identity, alibi, lack of corroboration, body-cam or surveillance contradictions of officer testimony.
- Legal defenses: Self-defense (Penal Code Chapter 9), necessity (§ 9.22), duress (§ 8.05), mistake of fact (§ 8.02), insanity (§ 8.01).
- Procedural defenses: Statute of limitations (CCP Article 12.01), speedy trial (Sixth Amendment), prosecutorial misconduct.
- Sentencing-phase defenses: Mitigation, character witnesses, treatment enrollment, employment verification, family support.
The right defense depends on the specific facts, the specific evidence the State has gathered, and the specific subsection charged.
Charged under Texas Penal Code § 38.04? Time matters. The first 48 hours after arrest often shape the entire case.
Call (972) 370-5060Email UsFrequently asked questions
Is § 38.04 a felony in Texas?
The classification depends on the specific subsection and any enhancements alleged. Evading Arrest charges can range from Class C misdemeanor to 1st-degree felony in some cases. The indictment or information will specify the alleged classification.
What is the statute of limitations for Evading Arrest?
Most felonies in Texas have a 3-year statute of limitations under Code of Criminal Procedure Article 12.01, though some have no limitations period at all (capital felonies, certain offenses against children). Most misdemeanors have a 2-year limitations period under Article 12.02.
Can I get probation for an offense under § 38.04?
Probation eligibility depends on whether the offense is on the Code of Criminal Procedure Article 42A.054(a) aggravated-offense list (formerly "3g offenses"). Most non-aggravated offenses are probation-eligible. For complete probation framework, see our punishment range page.
Can the charge be expunged later?
If the case ends in dismissal, acquittal, or no-bill, expunction under Code of Criminal Procedure Chapter 55 is available. If the case results in successful deferred adjudication, non-disclosure under Government Code § 411.0725 may apply (subject to exclusion list). See our expunction page.
Does this charge require sex offender registration?
Only offenses listed under Code of Criminal Procedure Article 62.001(5) require registration. Most non-sexual offenses do not. If you have been charged under § 38.04 and are uncertain, the indictment and statute will indicate whether registration attaches.
What if § 38.04 was amended recently?
Texas statutes are amended each odd-numbered year (regular session). For prosecutions, the law in effect at the time of the alleged offense controls. Recent amendments to Texas Penal Code can be tracked at capitol.texas.gov.
Can L and L Law Group help with my Evading Arrest case?
Yes. We handle Evading Arrest cases across Collin, Dallas, Denton, Tarrant, Rockwall, Kaufman, Ellis, and Hunt counties. Co-founding partners Reggie London (Texas Bar No. 24043514) and Njeri London (Texas Bar No. 24043266) take cases personally. Call (972) 370-5060 for a free, direct-to-attorney consultation.
Related resources at L and L Law Group
- All Texas Charges (hub page) — full Saputo-style charge encyclopedia
- The Defense Process · Guidebook — 12 stages of a Texas criminal case
- Practice Areas — DWI, drugs, family violence, federal, juvenile, and more
- Texas Punishment Range — what each class actually carries
- Bond Conditions in Texas — first-appearance and challenge process
- Texas Legal Glossary — plain-English term definitions
- FAQ Hub — 56 Texas criminal law Q&As
Common Scenarios
These hypothetical scenarios illustrate how Texas Penal Code § 38.04 applies. They are educational examples — not predictions about any specific case.
Scenario 1: Running from officer on foot
A defendant who, upon being lawfully stopped by a Frisco officer, runs from the scene. Under § 38.04(a), this conduct could constitute Evading Arrest or Detention — a Class A misdemeanor for a first offense without a vehicle.
Key consideration: The State must prove the officer was lawfully attempting to arrest or detain and the defendant knew that.
Scenario 2: Fleeing in a vehicle
A defendant who, upon being signaled to stop in a Collin County traffic stop, accelerates and flees in the vehicle. Under § 38.04(b)(1)(B), the conduct is a state-jail felony — the use of a vehicle escalates the classification.
Key consideration: Subsequent Evading in a Vehicle becomes a 3rd-degree felony under § 38.04(b)(2)(A), and a collision causing serious bodily injury raises it to a 2nd-degree felony under § 38.04(b)(2)(B).
Scenario 3: Evading causing injury or death
A defendant who flees a Plano traffic stop in a vehicle and causes a collision resulting in serious bodily injury to another person. Under § 38.04(b)(2)(B) or (b)(3), this conduct is enhanced to a 2nd-degree or 1st-degree felony depending on injury severity.
Key consideration: Evading that causes death is a 1st-degree felony; parallel charges of Intoxication Manslaughter or Manslaughter may also apply.
These are hypothetical educational scenarios. They do not reflect actual cases handled by L and L Law Group, PLLC, and outcomes vary based on facts, evidence, and legal representation. For a confidential, fact-specific discussion of a real case, call (972) 370-5060 or email info@landllawgroup.com.
Notable Case Law
Texas appellate courts have repeatedly construed Penal Code § 38.04. The decisions below are reference points the defense uses when framing motions, jury arguments, and trial strategy.
-
Redwine v. State, 305 S.W.3d 360, Tex. App.—Houston [14th] 2010
Addressed the 'knowing' element of evading arrest under § 38.04 — the defendant must know an officer is attempting to arrest or detain.
Case law evolves; verify current status before relying on any holding. Citations are accurate as of 2026-05-19. For a case-specific analysis of how recent decisions affect a particular charge, call L and L Law Group at (972) 370-5060 or email info@landllawgroup.com.
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