DOMESTIC ASSAULT & FAMILY VIOLENCE FAQ’S
What’s the difference between “domestic violence” and “family violence”?
Not much. “Domestic violence” commonly refers to violence between adults who are married, but “family violence” as defined in the Texas Family Code is broader and includes individuals who are:
- Related by blood or marriage
- Current and/or former spouses
- Parents of the same child
- Foster parents and children
It doesn’t matter for the above groups whether they live together or not. But the definition also includes:
- Individuals who are or were in a dating relationship
In a family violence case, the prosecutors may seek to add to add what is known as an “affirmative finding of family violence.” This finding, though it can be attached even the smallest of misdemeanor cases, can have serious future consequences.
What are the different kinds of charges for family violence cases?
Several different offenses can fall under the “family violence banner,” but the most common cases are:
- Assault (offensive touching, sometimes a reduction from a higher charge) – class C misdemeanor, $0 to $500 fine
- Assault Family Violence – class A misdemeanor, 0 to 365 days jail and/or up to $4,000 fine
- Assault Family Violence with prior FV conviction – 3rd degree felony, 2 to 10 years prison and/or up to $10,000 fine
- Continuous Family Violence (2 or more incidents alleged in one year) – 3rd degree felony, 2 to 10 years prison and/or up to $10,000 fine
- Aggravated Assault causing Serious Bodily Injury with Deadly Weapon with Family Violence – 1st degree felony, 5 to 99 years or life in prison and/or up to $10,000 fine
Does it matter if it was a punch or “just a push”?
Yes and no. Bodily injury means any “physical pain, illness, or any impairment of physical condition.” It can be as serious as a stab or gunshot wound, or as simple as pulling someone’s hair. The issue is “did it hurt?” or “did it cause pain?” Some felony offenses allege “serious bodily injury,” meaning “injury that creates a substantial risk of death, serious permanent disfigurement, or [extended] loss or impairment of the function of” part of the body. The more serious the injury, the higher level the offense will be charged. And if the officers aren’t sure, they will usually err on the side of charging the higher offense.
What if I’ve been convicted of a case with a finding of Family Violence case before?
If you’ve already been convicted once before of a case with an affirmative finding of family violence, then the second arrest may be charged as a third degree felony. A third degree felony is punishable by 2 to 10 years in prison and/or a fine of up to $10,000. If the State can’t prove the enhancement (the prior case), they may still prosecute the case as a lower offense, usually a class A assault family violence misdemeanor.
I was issued an Emergency Protective Order. What does that mean?
An EPO can be issued on request from a police officer, an alleged “victim”, a guardian, or an attorney for the State. It may prevent someone from committing family violence or assault, communicating in a harassing or threatening manner, going near a particular residence, workplace or school, or possessing a firearm. An EPO can be effective for anywhere from 31 to 91 days, and it can be “replaced” upon request by a complainant with a standard Protective Order.
What happens if the complaining party doesn’t want to prosecute?
A criminal charge is between the State of Texas and the accused – not the alleged victim and the accused. If the alleged victim doesn’t want to prosecute, then he or she can file an Affidavit of Non-Prosecution (“ANP”) with the District Attorney’s office. This can be done through an attorney or, sometimes, DA’s offices have their own protocol. An ANP may be the right thing in some cases but it’s a matter that needs to be discussed with your attorney because prosecutors are naturally skeptical if not cynical about an ANP. An ANP or requesting the charges be dropped may or may not significantly impact your case.
Can I still own a gun once if I plead guilty to Assault Family Violence?
If you are convicted of a Family Violence offense, like Assault Family Violence, you forfeit your rights to ever possess or transport a firearm or ammunition under federal law. If you violate the law, you will be subject to penalties under federal – not state – law.