Sec. 38.04. EVADING ARREST OR DETENTION. (a) A person commits an 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.
Text of subsection as amended by Acts 2011, 82nd Leg., R.S., Ch. 839 (H.B. 3423), Sec. 4, and Ch. 391 (S.B. 496), Sec. 1
(b) An offense under this section is a Class A misdemeanor, except that the offense is:
(1) a state jail felony if:
(A) the actor has been previously convicted under this section; or
(B) the actor uses a vehicle or watercraft while the actor is in flight and the actor has not been previously convicted under this section;
(2) a felony of the third degree if:
(A) the actor uses a vehicle or watercraft while the actor is in flight and the actor has been previously convicted under this section; or
(B) another suffers serious bodily injury as a direct result of an attempt by the officer or investigator from whom the actor is fleeing to apprehend the actor while the actor is in flight; or
(3) a felony of the second degree if another suffers death as a direct result of an attempt by the officer or investigator from whom the actor is fleeing to apprehend the actor while the actor is in flight.
Text of subsection as amended by Acts 2011, 82nd Leg., R.S., Ch. 920 (S.B. 1416), Sec. 3
(b) An offense under this section is a Class A misdemeanor, except that the offense is:
(1) a state jail felony if the actor has been previously convicted under this section;
(2) a felony of the third degree if:
(A) the actor uses a vehicle while the actor is in flight;
(B) 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; or
(C) the actor uses a tire deflation device against the officer while the actor is in flight; or
(3) a felony of the second degree if:
(A) 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; or
(B) another suffers serious bodily injury as a direct result of the actor's use of a tire deflation device while the actor is in flight.
(b-1) Notwithstanding Subsection (b), an offense under this section is a felony of the third degree if it is shown on the trial of the offense that the actor committed the offense in the course of committing an offense under Section 20.05(a)(2).
(c) In this section:
(1) "Vehicle" has the meaning assigned by Section 541.201, Transportation Code.
(2) "Tire deflation device" has the meaning assigned by Section 46.01.
(3) "Watercraft" has the meaning assigned by Section 49.01.
(d) A person who is subject to prosecution under both this section and another law may be prosecuted under either or both this section and the other law.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1987, 70th Leg., ch. 504, Sec. 1, eff. Sept. 1, 1987. Acts 1989, 71st Leg., ch. 126, Sec. 1, eff. Sept. 1, 1989; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1995, 74th Leg., ch. 708, Sec. 1, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 165, Sec. 30.240, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 1334, Sec. 3, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1480, Sec. 1, eff. Sept. 1, 2001.
Amended by:
Acts 2009, 81st Leg., R.S., Ch. 1400 (H.B. 221), Sec. 4, eff. September 1, 2009.
Acts 2011, 82nd Leg., R.S., Ch. 391 (S.B. 496), Sec. 1, eff. September 1, 2011.
Acts 2011, 82nd Leg., R.S., Ch. 839 (H.B. 3423), Sec. 4, eff. September 1, 2011.
Acts 2011, 82nd Leg., R.S., Ch. 920 (S.B. 1416), Sec. 3, eff. September 1, 2011.
Acts 2013, 83rd Leg., R.S., Ch. 161 (S.B. 1093), Sec. 22.001(38), eff. September 1, 2013.
Acts 2023, 88th Leg., 3rd C.S., Ch. 2 (S.B. 4), Sec. 11, eff. February 6, 2024.
Notes of Decisions
Cited in
1,160
cases (
271 in the last 5 years), 1981–2026 · leading case:
State v. Brown, 314 S.W.3d 487 (Tex. App.—Texarkana 2010).
State v. Brown, 314 S.W.3d 487 (Tex. App.—Texarkana 2010).
· cites it 22× “See TEX. PENAL CODE ANN. § 38.04. Brown further relies on the language of Section 38.”
Redwine v. State, 305 S.W.3d 360 (Tex. App.—Houston [14th Dist.] 2010).
· cites it 6× “See Tex. Penal Code Ann. § 38.04 (b)(2)(A) (Vernon 2003 & Supp.”
Hobbs v. State, 175 S.W.3d 777 (Tex. Crim. App. 2005).
· cites it 8× “In this case we decide that appellant committed one, continuous offense of evading arrest as defined by TEX. PEN.CODE, Section 38.04(a), which provides: A person commits an offense if he intentionally flees from a person he knows is a peace officer attempting lawfully to arrest…”
Oliva v. State, 548 S.W.3d 518 (Tex. Crim. App. 2018).
· cites it 3× “464(b), 76.202 ; Tex. Bus. & Com. Code §§ 504.”
Peavey v. State, 248 S.W.3d 455 (Tex. App.—Austin 2008).
· cites it 5× “See Tex. Penal Code Ann. § 38.04 (West 2003), § 49.”
Bunton v. State, 136 S.W.3d 355 (Tex. App.—Austin 2004).
· cites it 4× “See Tex. Pen.Code Ann. § 38.04 (West 2003). Basically, the offense is a class B misdemeanor, see § 38.”
Drichas v. State, 175 S.W.3d 795 (Tex. Crim. App. 2005).
· cites it 2× “Appellant was arrested in Texas and indicted for evading detention in a motor vehicle, a felony offense in violation of TEX. PENAL CODE § 38.04. Appellant's criminal history contained fourteen felony convictions, including drug possession, burglary, theft, escape, and eluding…”
Ceballos v. State, 246 S.W.3d 369 (Tex. App.—Austin 2008).
· cites it 8× “See Tex. Penal Code Ann. § 38.04 (b)(2)(A) (West Supp.”
Steven Ifeoluwa Adetomiwa, Jr. v. State, 421 S.W.3d 922 (Tex. App.—Fort Worth 2014).
· cites it 5× “2320 , 2820-21 (West) (current version at Tex. Penal Code Ann. § 38.04 ); Act of May 24, 2011, 82nd Leg.”
United States v. Harrimon, 568 F.3d 531 (5th Cir. 2009).
· cites it 4× “Thus, in determining whether fleeing by vehicle as defined in Texas Penal Code § 38.04 is a violent felony for the purposes of the ACCA, we must decide whether it is roughly similar to the examples in clause (ii) both (1) in kind and (2) in degree of risk posed (which must be at…”
Farrakhan v. State, 263 S.W.3d 124 (Tex. App.—Houston [1st Dist.] 2007).
· cites it 5× “See Tex. Pen.Code Ann. § 38.04(a), (b)(1) (Vernon 2003).”
Ex Parte Carner, 364 S.W.3d 896 (Tex. Crim. App. 2012).
· cites it 14× “2 Tex. Penal Code Ann. § 38.04 (2001). After the amendments became effective, a person was guilty of state-jail-felony evading arrest if the actor has been previously convicted of evading arrest or if the actor used a vehicle while in flight and has no prior conviction for…”
Tex. Penal Code § 38.04(1)(B): 1 case
Tex. Penal Code § 38.04(2)(A): 3 cases
Tex. Penal Code § 38.04(2)(B): 1 case
Tex. Penal Code § 38.04(2011): 1 case
Tex. Penal Code § 38.04(A): 1 case
Tex. Penal Code § 38.04(B)(2)(A): 1 case
Tex. Penal Code § 38.04(a): 323 cases
Farrakhan v. State, 263 S.W.3d 124 (Tex. App.—Houston [1st Dist.] 2007).
“See Tex. Pen.Code Ann. § 38.04(a), (b)(1) (Vernon 2003).”
Hobbs v. State, 175 S.W.3d 777 (Tex. Crim. App. 2005).
“In this case we decide that appellant committed one, continuous offense of evading arrest as defined by TEX. PEN.CODE, Section 38.04(a), which provides: A person commits an offense if he intentionally flees from a person he knows is a peace officer attempting lawfully to arrest…”
Tex. Penal Code § 38.04(a)(1): 2 cases
Hobbs v. State, 175 S.W.3d 777 (Tex. Crim. App. 2005).
“In this case we decide that appellant committed one, continuous offense of evading arrest as defined by TEX. PEN.CODE, Section 38.04(a), which provides: A person commits an offense if he intentionally flees from a person he knows is a peace officer attempting lawfully to arrest…”
Tex. Penal Code § 38.04(a)(1)(B): 1 case
Tex. Penal Code § 38.04(a)(b): 1 case
Tex. Penal Code § 38.04(a)(b)(1)(B): 1 case
Tex. Penal Code § 38.04(a)(b)(2)(A): 2 cases
Tex. Penal Code § 38.04(b): 22 cases
Tex. Penal Code § 38.04(b)(1): 31 cases
United States v. Harrimon, 568 F.3d 531 (5th Cir. 2009).
“Thus, in determining whether fleeing by vehicle as defined in Texas Penal Code § 38.04 is a violent felony for the purposes of the ACCA, we must decide whether it is roughly similar to the examples in clause (ii) both (1) in kind and (2) in degree of risk posed (which must be at…”
Hobbs v. State, 175 S.W.3d 777 (Tex. Crim. App. 2005).
“In this case we decide that appellant committed one, continuous offense of evading arrest as defined by TEX. PEN.CODE, Section 38.04(a), which provides: A person commits an offense if he intentionally flees from a person he knows is a peace officer attempting lawfully to arrest…”
Bunton v. State, 136 S.W.3d 355 (Tex. App.—Austin 2004).
“See Tex. Pen.Code Ann. § 38.04 (West 2003). Basically, the offense is a class B misdemeanor, see § 38.”
Tex. Penal Code § 38.04(b)(1)(A): 11 cases
Ex Parte Carner, 364 S.W.3d 896 (Tex. Crim. App. 2012).
“2 Tex. Penal Code Ann. § 38.04 (2001). After the amendments became effective, a person was guilty of state-jail-felony evading arrest if the actor has been previously convicted of evading arrest or if the actor used a vehicle while in flight and has no prior conviction for…”
Tex. Penal Code § 38.04(b)(1)(B): 18 cases
Tex. Penal Code § 38.04(b)(2): 14 cases
Tex. Penal Code § 38.04(b)(2)(A): 141 cases
Oliva v. State, 548 S.W.3d 518 (Tex. Crim. App. 2018).
“464(b), 76.202 ; Tex. Bus. & Com. Code §§ 504.”
State v. Brown, 314 S.W.3d 487 (Tex. App.—Texarkana 2010).
“See TEX. PENAL CODE ANN. § 38.04. Brown further relies on the language of Section 38.”
Tex. Penal Code § 38.04(b)(2)(B): 1 case
Tex. Penal Code § 38.04(b)(2)(C): 1 case
Tex. Penal Code § 38.04(b)(2)(a): 7 cases
Tex. Penal Code § 38.04(b)(3): 2 cases
Tex. Penal Code § 38.04(b)(l): 1 case
Tex. Penal Code § 38.04(c)(1): 3 cases
Tex. Penal Code § 38.04(d): 1 case
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.