Within the past four or five years, there has been an alarming number of instances where citizens come into contact with police officers that leads to arrests based on misinformation regarding Texas failure to ID statutes. More surprising is the lack of training for law enforcement officers on the specific instances in which they can make a valid arrest based on a citizen’s refusal to produce a valid form of identification.

What this article aims to do is provide a statutory analysis for the instances in which a Texas citizen is required to produce identification to law enforcement, and the specific instances in which law enforcement may make a justifiable arrest based on a citizen’s failure to produce identification under the current Texas failure to ID statutes.

Background of Texas Failure to ID Statutes

From a statutory standpoint, Section 38.02 of the Texas Penal Code is fairly simple. Section 38.02(a) provides that if a law enforcement officer places a citizen under arrest and they fail to provide their name, date of birth, or residence address, the law enforcement officer can additionally charge the citizen with a Class C misdemeanor for failure to ID. See Tex. Pen. Code Ann. § 38.02(c)(1).

Now, the caveat is the failure to ID charge can be raised to a Class B misdemeanor if the citizen being lawfully arrested has outstanding warrants. Remember, “outstanding warrants” includes traffic warrants, such as failures to appear on traffic tickets. See Tex. Pen. Code Ann. § 38.02(c)(2).  What this means is that if you forgot to pay a speed ticket two months ago and you get pulled over again, it’s better to identify yourself and not pick up a Class B misdemeanor for failing to ID.

Looking to Section 38.02(b) of Texas Penal Code, a citizen can be arrested for failure to ID if the citizen intentionally gives a false name, date of birth, or residential address to a law enforcement officer when the citizen is lawfully under arrest or under lawful detention. The penalty for this charge is a Class B misdemeanor if a citizen does not have active warrants. See Tex. Pen. Code Ann. § 38.02(d)(1).  So, if you get pulled over and decide to give a fake name and you don’t have active warrants, you’ll likely get charged with a Class B misdemeanor for failing to ID because you gave false information.

Again, the caveat is the failure to ID charge based on giving false information can be raised to a Class A misdemeanor if the citizen has outstanding warrants. See Tex. Pen. Code Ann. § 38.02(d)(2).

Current Issues With Texas Failure to ID Statutes

As an attorney, charges pertaining to Section 38.02(b) are the most common our office encounters. Typically, a law enforcement officer will initiate contact with a citizen and the citizen will give the identifying information of a friend, family member, or a completely false name due to the fact that they have active warrants. Once again, this causes more trouble than it is worth for the citizen, especially if the warrants are for traffic violations only, as the citizen will then be facing an additional Class A misdemeanor.

One would think that this statute is fairly clear. However, the number of false arrest claims for failure to ID are alarming and unfortunately an element of contact with law enforcement in the state of the Texas. It appears that some police officers in Texas believe they have the universal right to identify anyone, at any time, for any reason, whether or not they have a reasonable suspicion or probable cause.

In the past, the language of Section 38.02(a) was vague enough to render a conclusion that law enforcement officers could request identification from citizens at any time and for any reason. However, in Brown v. Texas, the Court ruled that Texas Penal Code Ann. Section 38.02 (a), as enacted by the Texas legislature in 1974, was unconstitutional under the Fourth Amendment because it allowed an officer to stop and demand identification of an individual without any specific basis or reasonable belief that he was involved in criminal activity.” See Brown v. Texas, 443 U.S. 47 (1979). See also Weddle v. Ferrell, No. 3:99-CV-0453-G, 2000 U.S. Dist. LEXIS 2659, 2000 WL 256891 (N.D. Tex. 2000).

Still, in 2017, police officers often demand identification and threaten to make arrests (and often do) without any valid statutory basis. However, Texas courts have repeatedly struck down this incorrect application of Texas failure to ID statutes as a violation of the Fourth Amendment in both the civil and criminal context.

In 1981, the Southern District of Texas ruled that a defendant was arrested and subsequently convicted due to their refusal to answer an officer’s questions regarding identification. The Southern District went further to state that this type of behavior by law enforcement is “impermissible even in the context of a lawful investigatory stop.” See Spring v. Caldwell, 516 F. Supp. 1223 (S.D. Tex. 1981), reversed on other grounds 692 F.2d 994 (5th Cir. 1982).

Fail to ID and the Rights of Passengers

But, you may be asking, does a police officer have the right to require identification for passengers in a vehicle? In 1984, the Texas Court of Criminal Appeals ruled that a police officer cannot require identification of an occupant of a vehicle, who is not the driver, without a legal basis for demanding it. See Lewis v. State, 664 S.W.2d 345 (Tex. Crim. App. 1984).

To further clarify the rights of passengers, in 2007, the Texas Court of Criminal Appeals ruled that, “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.” See 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).

Are You Required to Show ID While Driving?

So, this brings up a final question: do you have to provide identification if you are driving a vehicle? Based on the previous case and statutory language in the Texas Transportation Code, you must provide identification if you are driving a motor vehicle, or risk a criminal penalty for failing to ID. Specifically, we need to look at Sec. 521.021 and 521.025 of the Texas Transportation Code for guidance.

Breaking the Transportation Code down, Sec. 521.021 indicates that we can’t drive on a Texas highway without a driver’s license. Sec. 521.025 provides the criminal penalty for failing to either have a driver’s license and/or failing to show it to a police officer or magistrate. Essentially, it is a crime for either not having a driver’s license or failing to ID if requested by a police officer or magistrate.

According to the Transportation Code, it is a Class C misdemeanor for the first and second occurrence within a year if you fail to provide an ID if you are driving and stopped by law enforcement. Furthermore, if you have a third occurrence where you fail to provide a driver’s license, you can face up to 6 months in jail and a fine, a Class B misdemeanor.

However, a defendant has a valid defense under Sec. 521.025(d) if they had a valid driver’s license at the time of the traffic stop and bring the identification to court. But remember, you will still be charged an administrative fee if you fail to ID and choose to exercise this defense at your court date.

So, how does the Texas failure to ID statutes in the Penal Code coincide with the Transportation Code?  Technically, you can still be charged under the Texas Penal Code’s failure to ID statutes if you are pulled over for a traffic stop (a lawful detention) and give false information to the police officer.

Additionally, the Supreme Court in Atwater v. City of Lago Vista has affirmed that a police officer may arrest a defendant for a Class C misdemeanor. See Atwater v. City of Lago Vista, 532 U.S. 318, 319 (2001). However, Section 543.002 – 04 of the Texas Transportation Code indicate that an officer may not arrest a person charged with speeding or a violation of the open container statutes in Section 49.03 of the Texas Penal Code.

What this essentially means is you can refuse to ID as a driver of a motor vehicle, get cited AND arrested for Failing to Produce a Driver’s License (Tex. Trans. Code – Class C). Furthermore, if you continue to fail to ID after the officer has lawfully placed you under arrest (either via citation or actually taking you before a magistrate) for the aforementioned charge, you can be subsequently charged for failure to ID under Texas Penal Code Sec. 38.02(a).  Basically, you’ll be charged for the failure to produce a driver’s license (Class C) AND charged with Failure to ID under Sec. 38 of the Texas Penal Code (Class C if you don’t have warrants, and Class B if you do have warrants).