The government intensely prosecutes what it defines as domestic or family violence type assaults. Many district attorney’s offices feature special divisions. /!; dedicated response teams to address these assaults. While domestic violence is a terrible thing, it is equally terrible to be wrongfully accused of a crime. If you’re charged with domestic violence, the below information will help you better understand the charges against you. Our office offers free consultations to discuss your case.
What is family violence under Texas law?
Texas law allows prosecutors and the court to attach a “family violence” finding to many charges. The vast majority of family violence enhancements are attached to assault charges, but any offense under Title 5 of the penal code can carry with it a family violence allegation. You can think of family violence as an enhancement that could mean more serious consequences in your criminal case.
The legal definition for family violence isn’t even found in the penal code – rather it’s found in Section 71.004 of the Texas Family Code. Family violence means:
“An act by a member of a family or household against another member that is intended to result in physical harm, bodily injury, assault, or sexual assault, or is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault.”
Family violence does not include defensive measures to protect oneself.
Any and all dating violence will also be considered “family violence” under Texas law.
Dating violence means:
“An act other than a defensive measure to protect oneself, by an actor that is committed against a victim with whom the actor has or has had a dating relationship.”
How does a family violence finding affect my case?
Family violence findings are not to be taken lightly, as they can have serious consequences.
If you are convicted of an offense involving family violence, it may be unlawful for you to possess or purchase a firearm, including a handgun, shotgun, rifle, other long gun, or ammunition, pursuant to federal law under 18 U.S.C. Section 922(g)(9) or Section 46.04(b) of the Texas Penal Code.
A finding of family violence may also have negative consequences for custody and visitation rights in family law proceedings. A family law court may even use a family violence finding as the basis for rewarding alimony in a divorce.
A family violence finding may negatively impact employment opportunities in certain fields, including the military, and law enforcement.
For non-US citizens, a family violence finding may result in deportation, exclusion from admission to the country, or denial of naturalization under federal law.
What if the alleged victim no longer wants to prosecute?
There was a time in the not-so-distant past when a victim’s preference held significant weight in a family violence assault. It was quite commonplace for a victim to merely request charges be dropped, and the government would relinquish prosecution.
The times are changing, and the government very often no longer defers to the victim in family violence cases. Many larger counties such as Harris and Montgomery create specialized divisions to deal with domestic violence. Government lawyers are trained to use evidence-based prosecution to proceed in a case without the victim’s cooperation. This means that the government will use photographs, medical records, 911 audio, and other evidence in court in an effort to secure a conviction. All of this evidence is at the government’s disposal, but it may not paint a complete picture as to what actually happened in a case, especially if the alleged victim lied or exaggerated to the police.
It is important to have a knowledgeable attorney on your side who understands the government’s tactics. Not all the evidence possessed by the government is reliable or admissible in court – either because it is hearsay, or a violation of your rights under the Confrontation Clause of the US Constitution.
What is an emergency protective order?
Emergency Protective Orders (EPO’s) are one of the tools magistrates use to keep victims safe, by ordering an accused person to avoid offensive conduct, stay away from specific people, or certain locations. An EPO is a criminally enforceable court order issued after an arrest. The violator may be arrested and charged yet again under Section 25.07 of the Texas Penal Code if the order is violated.
A protective order may be issued by a magistrate upon the court’s own discretion, but also at the request of a victim, police officer, or prosecuting attorney. There are certain instances where the law requires a magistrate to issue a protective order – those cases involving the use of a deadly weapon, or serious bodily injury to the victim.
These orders sometimes have the consequence of dividing families when there is absolutely no ongoing risk of violence. They also can be very confusing to an accused citizen new to the criminal justice system.
One of the most important things you must remember is that a protective order is not the same thing as conditions of bond discussed below. When you are arrested, a protective order is signed by a magistrate or judge and lasts for a certain period, usually 61-91 days. The order is temporary.
What are conditions of bond?
Conditions of bond, on the other hand, last for the full duration your case is pending. They are signed by a judge or magistrate, and similar to an EPO, they give certain rules to the accused in a family violence case regarding contact or communication with an alleged victim. Do not make the mistake of violating a condition of bond under the mistaken belief that the condition no longer applies because an EPO expired. EPO’s and conditions of bond are separate and distinct documents. It is important to review them carefully with your attorney, and to understand each term and condition imposed by the court.
Is there any way to modify or amend conditions of bond or emergency protective orders?
Conditions of bond and emergency protective orders may be modified by the court. This is an especially important reprieve, as legal documents often employ “cookie cutter” language with no real understanding of each unique and personal situation.
Emergency protective orders are generally more difficult to amend than bond conditions, as EPO’s may only be modified under sections 17.292(j) and (d) of the Texas Code of Criminal Procedure. Notice must be provided to all affected parties under the EPO, and a hearing must be held by the court. The issuing court may only modify the EPO upon findings that the original order is unworkable, modification will not increase risk to the victim, and modification will not endanger a person protected under the order.
What if I did not start the physical altercation? What if someone is exaggerating or is lying about what happened?
If you were attacked, or provoked, your attorney should advocate on your behalf before the government, the court, and if necessary, a jury. The criminal justice system is extremely hostile to those accused of family violence. You should immediately begin working with a zealous attorney to prepare your defense.
How can family violence affect my release on bail?
When setting bail for an accused citizen, a court will first look to Article 17.15 of the Code of Criminal Procedure for appropriate guidance. One of the factors addressed in that article is whether an offense was committed against person or property.
Those accused of offenses involving family violence must be particularly careful to always abide by their protective orders and conditions of bond. If a person is re-arrested for violating protective orders or conditions of bond, Article 17.152 of the Code of Criminal Procedure allows the court to hold them with no bond. This means that a person falling under this article will be held in jail indefinitely until their case is resolved.
What rights do victims have in a pending criminal family violence case?
Victim rights are controlled by Article 56.02 of the Texas Code of Criminal Procedure. A victim, guardian of a victim, or close relative of a deceased victim is entitled to the right to be present at all public court proceedings related to the offense, subject to the approval of the judge in the case. Victims enjoy the right to have safety considered when setting bail, the right to a separate waiting area while court is pending, and the right to have a Victim Impact Statement considered by the court.