Texas Penal Code 38.02 – Failure to Identify

WHAT IS FAILURE TO IDENTIFY IN TEXAS?

The Texas law against failure to identify prohibits refusing to provide identifying information to an arresting, and providing false identifying information to an officer.

WHAT IS THE FAILURE TO IDENTIFY LAW IN TEXAS?

Tex. Penal Code § 38.02. FAILURE TO IDENTIFY.

(a) A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.

(b) A person commits an offense if he intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has:

(1) lawfully arrested the person;

(2) lawfully detained the person; or

(3) requested the information from a person that the peace officer has good cause to believe is a witness to a criminal offense.

(c) Except as provided by Subsections (d) and (e), an offense under this section is:

(1) a Class C misdemeanor if the offense is committed under Subsection (a); or

(2) a Class B misdemeanor if the offense is committed under Subsection (b).

(d) If it is shown on the trial of an offense under this section that the defendant was a fugitive from justice at the time of the offense, the offense is:

(1) a Class B misdemeanor if the offense is committed under Subsection (a); or

(2) a Class A misdemeanor if the offense is committed under Subsection (b).

(e) If conduct that constitutes an offense under this section also constitutes an offense under Section 106.07, Alcoholic Beverage Code, the actor may be prosecuted only under Section 106.07.

WHAT IS THE PENALTY CLASS FOR FAILURE TO IDENTIFY IN TEXAS?

Failure to identify is classified as a Class A, Class B, or Class C misdemeanor, depending on the person’s conduct and fugitive status.

• Class C misdemeanor, punishable by a maximum $500 fine, if a person:
  • was under arrest;
  • refused to give the arresting officer their name, address, or date of birth; and
  • was not a fugitive at the time;
• Class B misdemeanor, punishable by up to 180 days in county jail, if a person:
  • was under arrest, and:
    • refused to give the arresting officer their name, address, or date of birth; and
    • was a fugitive at the time;
  • was detained, arrested, or a potential witness, and provides a false name, date of birth, or address;
• Class A misdemeanor, punishable by up to one year in county jail, if a person:
  • was detained, arrested, or a potential witness, and provided a false name, date of birth, or address, and was a fugitive at the time.

WHAT IS THE PUNISHMENT RANGE FOR FAILURE TO IDENTIFY IN TEXAS?

A Class C misdemeanor failure to identify charge carries a maximum fine of $500, and no jail time. A person charged with a Class B misdemeanor faces up to 180 days in jail, and a maximum $2,000 fine. Failure to identify charged as a Class A misdemeanor carries up to one year in jail, and a maximum $4,000 fine.

WHAT ARE THE PENALTIES FOR FAILURE TO IDENTIFY IN TEXAS?

A person charged with a Class C misdemeanor failure to identify is eligible for deferred adjudication for a period of up to 180 days. If convicted, the person will only be required to pay the fine assessed, without being subjected to probation or further conditions.

A person charged with a Class A or Class B misdemeanor failure to identify is eligible for probation after a conviction, or deferred adjudication without a conviction, for a period of up to two years.

WHAT ARE THE DEFENSES TO FAILURE TO IDENTIFY IN TEXAS?

The statute does not authorize specific defenses to failure to identify. A person accused thereof may attempt to negate at least one of the elements the State must prove at trial.

• What is the difference between an arrest and detention in Texas? An officer may detain someone if he or she has reasonable suspicion that the person has been or is engaged in criminal activity. A person detained is not free to leave, but may legally refuse to identify, unless the person is a fugitive, or is required by law to provide identifying information. For example, when a police officer conducts a traffic stop, the driver must provide his or her license to operate a motor vehicle.

  An arrest requires the officer to have “probable cause” to believe, based on reasonably trustworthy information, and facts and circumstances within the officer’s knowledge, that a person has committed or is committing a crime. An arrested person must give the officer the requested identifying information—name, date of birth, and residence address—to avoid a failure to identify charge.

• Is a person always required to give police information in Texas? No. Officers who have no reasonable suspicion to detain or probable cause to arrest generally have no authority to force a person to speak to them. Police officers are not prohibited from approaching people, but anyone who is not arrested or detained as a potential suspect or witness is free to leave without giving any further information.

• Can a person be charged with failure to identify for giving a nickname? Yes. Texas courts have interpreted the statutory language “false or fictitious” as one that is not real, imaginary, or not true, and have upheld convictions for defendants who gave a name other than their exact legal name.

WHAT IS THE STATUTE OF LIMITATIONS FOR FAILURE TO IDENTIFY IN TEXAS?

The limitations period for failing to identify, whether it is charged as a Class A, Class B, or Class C misdemeanor, is two years.

FAILURE TO IDENTIFY IN TEXAS

Texas law requires anyone who is detained or under arrest to provide truthful identifying information, and the failure to do so is punishable as a misdemeanor offense. The purpose of criminalizing the failure to identify is to ensure police officers receive accurate information.

TEXAS FAILURE TO IDENTIFY COURT CASES

The case law regarding failure to identify in Texas illustrates the statute’s application.

• In Smith v. State, the defendant, Janeen Smith, identified herself while detained as “Jay Smith.” After finding out her legal name was Janeen Smith, officers also learned she had active warrants. She was ultimately convicted of failure to identify, and the appellate court affirmed. The defendant did not give her legal name after being asked for it.