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Failure to ID? Check Texas Penal Code 38.02

By Judith Pannebaker BCC Editor

In a follow up to an article in last week’s Courier, titled, “Sign violation leads to tasering,” information found on https://www.versustexas.com/criminal/texas-dont-identify-police-unless/ may prove helpful to residents who find themselves in a confrontation with local law enforcement officers regarding a possible violation of City of Bandera sign ordinance.
According to Texas Penal Code 38.02, a person must identify themselves with a valid name, address and date of birth to a police officer, only after being arrested by the officer (Courier emphasis). Notice that the person must be under arrest for this to apply. In the State of Texas, if you are not under lawful arrest, you do not have to identify yourself.
If confronted, but not yet under arrest, you can simply decline to provide your name and date of birth. This is why most officers who stop a vehicle ask for a driver’s license and registration, which provides them with the information they want without having to actually “ask” for it.
Now, let’s imagine a situation where an officer approaches you and you’re not driving a vehicle. If you are not under arrest, you are under no obligation to provide your name or other identifying information.
Let’s go over this again: unless you are under lawful arrest – and the key word is “lawful” – you do not have to provide your name, date of birth, address or Social Security information to an officer. Additionally, anyone being lawfully detained, but not under arrest, is not required to provide officers with identifying information.
On the other hand, if you are under arrest, and that arrest is lawful, it is a crime to not provide identifying information. Failure to identify yourself when an officer has lawfully arrested you is a Class C misdemeanor offense in Texas, which is punishable by a fine of up to $500. This same offense is a Class B misdemeanor if you fail to identify yourself to an officer who has lawfully arrested you, if at the time of the arrest, you also have an outstanding warrant against you.
And, according to information on https://excoplawstudent.wordpress.com/2013/05/09/texas-failure-to-identify-law-what-it-says-vs-what-police-think-it-says/, Penal Code Ann. § 38.02 is fairly simple.
It is not an offense if you refuse 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.).
In that case, 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, according to the website, this is not unusual for Texas. “Police officers in this state have a mistaken 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.”
Yet, in Texas, police officers continually demand identification and threaten arrest – or actually make an arrest – for Failure to Identify when, in fact, no offense has occurred.”
At no time during City Deputy Marshal Willie Smith’s written account of last week’s disturbing incident did he mention the arrest of the 66-year-old woman who was tasered. After warrants were issued for her arrest for Failure to Identify and Resisting Arrest, she turned herself in. She was released on her own recognizance.
That being written, the Courier is sure that any attorney retained by the woman mentioned in last week’s article will be fully aware of Texas Penal Code 38.02, as well as Dutton v. Hayes-Pupko.