By Brandy Robinson
First Assistant District Attorney in Austin County
“I’m pretty sure evading arrest with a vehicle is just a state jail felony, right? You can’t charge my guy with a third degree.”
Have you ever heard this from a defense attorney during a plea negotiation before? If not, count yourself lucky.
If you have, you would be in good company with lots of other prosecutors. Many defense attorneys—and many defendants who got their law degrees from the prestigious school of hard knocks—will still occasionally insist that evading arrest with a vehicle can be charged only as a state jail felony rather than a third-degree felony.
The first time a defense attorney springs this argument on you, you might whip out your trusty Penal Code to quickly prove them wrong. You might also find yourself scratching your head as you try to decipher two seemingly contradictory versions of Texas Penal Code §38.04 published side by side. If this happens, fear not. Evading with a vehicle is indeed a third-degree felony—but proving it may take some explaining.
Confusion
The road to hell, and hellishly perplexing laws, is paved with good intentions. More than 10 years ago, in the July–August 2012 issue of this journal, author John Stride expended admirable effort to explain the confounding and seemingly conflicting amendments to the evading law that the legislature passed during the 2011 legislative session.[1]
To those of us old enough to remember criminal prosecution during the 2000s (no one will ever convince me to call them “the aughties”), it comes as no surprise that a first-offense evading arrest with a motor vehicle used to be classified as a state jail felony. However, as Mr. Stride explained, the Texas legislature bumped the charge up to a third-degree felony when it passed SB 1416 in 2011. Seems simple enough, right?
Cars
The complication arose because another amendment to the evading arrest statute had already passed during the same session. In the 82nd Regular Session, SB 496 was passed to add watercraft into the felony evading statute, where the law had previously applied only to land-based motor vehicles. Later, the legislature also passed SB 1416, which increased the offense level for evading—whether with boats or cars—to a third-degree felony.
Unfortunately, Stride noted that book publishers at the time failed to either understand or properly apply statutory construction to reflect the new law. One would think that today, more than 10 years later, they would have come to a consensus on a better way to reflect these changes to the law. But if you pull a current Penal Code from its vaunted place beside your desk (or under a mountain of case files) and turn to §38.04, your version likely still contains both versions of the statute. Even online publishers of the Penal Code often publish both versions in their entirety rather than try to parse them out.[2]
This editorial decision leaves some defendants and their attorneys arguing that the tie should go to the runner (or to the evading driver, if you will). Such arguments rest on the incorrect assumption that because both subsections exist and are effective in their entirety, the State must pick between them and use the version most favorable to the defense. Multiple Texas courts have made their disagreement with that premise clear.
Cases
In 2012, shortly after the passage of SB 1416, the Court of Criminal Appeals went out of its way to address the then-current changes in a footnote on an unrelated evading case. The Court first noted that the case before it rested on an older version of the statute with a lower punishment range. The Court then remarked that per the 2011 legislative changes, “Now it is a third-degree felony if an offender used a vehicle or watercraft to evade arrest, regardless of whether he has a prior conviction for evading.”[3]
Several lower courts that have been called upon to address the issue have followed suit. The Fort Worth Court of Appeals observed that every effort should be made to reconcile the two bills. That Court also pointed out that even if reconciliation were impossible, then the legislature’s decision to raise evading to a third-degree felony in SB 1416 would prevail in any conflict, because the vote to pass SB 1416 constituted the last legislative vote on all three bills,[4] which is how the Code Construction Act[5] reconciles bills that change statutes in irreconcilable ways. Numerous other Texas appellate courts have since cited the case, agreeing with the Fort Worth Court’s determination.[6]
Conclusion
The next time you handle an evading with a vehicle case, you may want to have one of these cases handy. You just might run into a defense attorney trying to convince the court to throw up a roadblock. At the risk of thoroughly wearing out the road-themed metaphor, I’ll conclude by saying that the legislature may have driven the long way around to get us there, but the resulting caselaw has made the final destination clear: The first offense of evading arrest with a vehicle is a third-degree felony.
Endnotes
[1] www.tdcaa.com/journal/texas-style-sausage-making-gleaning-legislative-history-and-legislative-intent.
[2] See, for example, https://statutes.capitol.texas.gov/ Docs/PE/htm/PE.38.htm#38.04, where two versions of Subsection (b) coexist. It should be noted that publishers, including TDCAA, don’t have the discretion to parse them out unless the legislature repeals them. The best they can do it offer explanatory notes—which TDCAA does in its annotated Criminal Laws of Texas book, for example. Both sections do exist—in the same way a statute found unconstitutional still exists on the books; it’s up to litigators to argue one version controls.
[3] Ex parte Carner, 364 S.W.3d 896, 899 n.5 (Tex. Crim. App. 2012).
[4] Adetomiwa v. State, 421 S.W.3d 922, 927 (Tex. App.—Fort Worth 2014, no pet.).
[5] Tex. Gov’t Code, §§311.025–.026.
[6] See Watkins v. State, No. 09-19-00123-CR, 2021 WL 261760, at *7 (Tex. App.—Beaumont Jan. 27, 2021, pet. ref’d); Fulton v. State, 587 S.W.3d 76, 78 (Tex. App.—San Antonio 2019, no pet.); Warfield v. State, No. 03-15-00468-CR, 2017 WL 2628563, at *11–12 (Tex. App.—Austin June 14, 2017, pet. ref’d); Rodriguez v. State, No. 08-18-00053-CR, 2019 WL 3283314, at *3 (Tex. App.—El Paso July 22, 2019, no pet.); Bailey v. State, No. 12-18-00096-CR, 2019 WL 1142459, at *2 (Tex. App.—Tyler Mar. 12, 2019, no pet.); Moorhead v. State, 483 S.W.3d 246, 248 (Tex. App.—Texarkana 2016, no pet.); Jackson v. State, No. 05-15-00414-CR, 2016 WL 4010067, at *7 (Tex. App.—Dallas July 22, 2016, no pet.).