Penal Code · §38.04

Evading Arrest or Detention

Q: Evading Arrest or Detention on foot (§38.04) committed by a first-time offender is what level of offense?

Class A misdemeanor Evading on foot is a Class A misdemeanor. (Older study guides sometimes still list Class B; current law treats the on-foot baseline as Class A.)

Q: Evading Arrest or Detention with a vehicle or watercraft is at minimum:

State jail felony Evading using a vehicle or watercraft is a state jail felony at the baseline; rises to a 3rd degree felony with a prior §38.04 conviction or if SBI results, and a 2nd degree felony if death results.

Intentionally flees from a person known to be a peace officer or federal special investigator who is attempting lawfully to arrest or detain him.

To prove this offense, the State must establish each of the following elements: Intentionally flees; From a person known to be a peace officer or federal special investigator; Attempting lawfully to arrest or detain; Class A on foot; state jail with prior or vehicle/watercraft use; 3rd degree if SBI; 2nd degree if death.

The base classification is Class A misdemeanor on foot (default), with possible enhancements depending on the conduct, victim, location, or prior history of the actor.

Elements you must prove

Intentionally flees
From a person known to be a peace officer or federal special investigator
Attempting lawfully to arrest or detain
Class A on foot; state jail with prior or vehicle/watercraft use; 3rd degree if SBI; 2nd degree if death

Texas Law — Charge Details

Class A Misd. → 2nd Degree Felony

Offense

Evading Arrest or Detention

Statute

Tex. Penal Code §38.04

Classification

Class A misdemeanor on foot (default)

Intentionally flees from a person known to be a peace officer or federal special investigator who is attempting lawfully to arrest or detain him.

Potential Penalty Enhancements

If this condition applies…	Charge escalates to	Statute
Use of vehicle or watercraft	State jail felony	§38.04(b)(2)(A)
Vehicle/watercraft + prior §38.04 OR causes SBI	3rd degree felony	§38.04(b)(2)(B)
Causes death of another	2nd degree felony	§38.04(b)(3)

Practice 3 questions on this topic

Time yourself, score your run, review missed questions with statute references — Free Practice Pass cadets get limited access.

Start Free Practice

Worked examples

Worked example 1

Evading Arrest or Detention on foot (§38.04) committed by a first-time offender is what level of offense?

Class C misdemeanor
Class B misdemeanor
Class A misdemeanor Correct
State jail felony

Why: Evading on foot is a Class A misdemeanor. (Older study guides sometimes still list Class B; current law treats the on-foot baseline as Class A.)

Statute: Tex. Penal Code §38.04

Worked example 2

Evading Arrest or Detention with a vehicle or watercraft is at minimum:

Class A misdemeanor
State jail felony Correct
3rd degree felony
2nd degree felony

Why: Evading using a vehicle or watercraft is a state jail felony at the baseline; rises to a 3rd degree felony with a prior §38.04 conviction or if SBI results, and a 2nd degree felony if death results.

Statute: Tex. Penal Code §38.04(b)

Worked example 3

A driver leads officers on a 4-mile car chase, ignoring lights and siren, before stopping voluntarily. No prior §38.04 convictions, no injuries. Charge?

Evading Arrest or Detention (on foot) — Class A misdemeanor
Evading Arrest or Detention with vehicle — state jail felony Correct
Evading with vehicle, prior conviction — 3rd degree felony
Evading with vehicle causing SBI — 3rd degree felony

Why: Evading using a vehicle is a state jail felony at the baseline. Rises to 3rd degree with a prior §38.04 conviction or if SBI is caused, and to 2nd degree if death results.

Statute: Tex. Penal Code §38.04(b)(2)(A)