The Texas Failure to Identify law is fairly simple.  Why don’t police get it?  It states:

  • (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.

Tex. Pen. Code Ann. § 38.02.

OK, it is fairly simple.  If you are under arrest refuse to provide your name, date of birth, or residence address, you commit a Class C misdemeanor unless you have warrants outstanding, when it is a Class B misdemeanor.  If you are either under arrest or lawfully detained, it is an offense to provide a false name, date of birth or address.  The later is a Class B or A misdemeanor, dependent on whether you have outstanding warrants.

What is not an offense is refusing to provide your name, date of birth, or residence address when you are lawfully detained. See Dutton v. Hayes-Pupko, No. 03-06-00438-CV, 2008 Tex. App. LEXIS 6030, 2008 WL 3166324 (Tex. App.–Austin 2008, no pet.).  The court held that Deputy Derrick Dutton had arrested Sheryl Hayes-Pupko without probable cause since the law did not require her to identify herself while she was only being detained..  Dutton’s mistake of law did not provide a defense for the false arrest claim.

Unfortunately, this is not unusual for Texas.  Police officers in this state have an idea that they have the right to identify anyone at anytime for any or no reason.  The courts have repeatedly slapped them down on this.

  • “The application of Tex. Penal Code Ann., Tit. 8, § 38.02 (1974), to detain appellant and require him to identify himself violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe appellant was engaged or had engaged in criminal conduct.  Accordingly, appellant may not be punished for refusing to identify himself, and the conviction is Reversed.”  Brown v. Texas, 443 U.S. 47 (1979).
  • “It is clear petitioner was arrested and convicted for his refusal to answer Officer Jennings’ question requesting that petitioner identify himself. This is impermissible even in the context of a lawful investigatory stop.” Spring v. Caldwell, 516 F. Supp. 1223 (S.D. Tex. 1981), reversed on other grounds 692 F.2d 994 (5th Cir. 1982).
  • “First, Officer Lowe obtained identification from each occupant of the automobile though he had no legal basis whatever for demanding them.”  Lewis v. State, 664 S.W.2d 345 (Tex. Crim. App. 1984).
  • “Moreover, the Supreme Court has previously dealt with a case in which Texas police officers demanded that an individual identify himself even though they had no reasonable suspicion that he had committed a crime. In Brown v. Texas, the Court [11]  ruled that Texas Penal Code Ann. § 38.02 (a), as enacted by the Texas legislature in 1974, was unconstitutional because it allowed an officer to stop and demand identification of an individual without any specific basis or belief that he was involved in criminal activity.” Weddle v. Ferrell, No. 3:99-CV-0453-G, 2000 U.S. Dist. LEXIS 2659, 2000 WL 256891 (N.D. Tex. 2000).
  • “Officers have the right to conduct an investigation of a driver following a traffic violation, but do not have authority to investigate a passenger without reasonable suspicion.”  St. George v. State, 237 S.W.3d 720 (Tex. Crim. App. 2007) (holding that arrest of passenger for failure to identify not valid absent legal detention).

Yet we still see police officers demand identification in Texas and threaten arrest (or actually make arrest) on Failure to Identify when in fact, no offense has occurred.

Examples of idiotic reasoning by officers:

At 1:40 the officer claims that he “automatically” has reasonable suspicion when someone fails to identify themselves.

Here, the lady was basically arrested because she was filming.  The charge was failure to identify, but she was never asked for ID.

Alice Police Officer Nick Juarez arrested this individual because he refused to identify himself.  Note that there was no suspicion of criminal activity, and Juarez made a statement that he didn’t want to appear on Youtube.  How’s that working for you?

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