- What is Family Violence?
Family violence is defined as "an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself." Tex. Fam. Code § 71.004 (2004)
- What is An Assault Family Violence Offense?
There is not a Texas penal code statute entitled "Assault - Family Violence." Despite what offense may have been written on the magistrate's warning or bail bond, the actual offense is for "Assault". In Texas, an assault offense can range from a Class C misdemeanor (similar to traffic citation) to a felony. The charge is a Class C misdemeanor if the physical contact is merely regarded as " offensive " or "provocative". In those situations, the suspect usually receives a citation and promises to appear later in a Municipal Court where the maximum punishment is by fine up to $500.00.
The vast majority of family violence cases are charged as Class A misdemeanors in which it is alleged the defendant caused "bodily injury" to the victim. In cases in which "serious bodily injury " is alleged, the offense is characterized as a felony. It also will be a felony if "the defendant has been previously convicted of an offense against a member of the defendant's family or household".
- What Happens If the Alleged Victim Decides She Does Not Want to Prosecute?
The State will prosecute the case anyway.
- What Is Zero Tolerance?
Zero Tolerance means the police will make an arrest without exception after a family argument if they have probable cause to believe any bodily injury has occurred.
- What Is A No Drop Policy?
A "No Drop Policy" means the State will prosecute all domestic violence cases without exception, even if the victim wants the case dismissed and has filed an affidavit of non-prosecution.
- What is an Emergency Protective Order?
After a person is arrested for family violence, during their arraignment hearing the magistrate can issue an emergency protective order against the accused. The protective order may:
- evict the accused from their residence for sixty (60) days;
- prohibit the accused from possessing a firearm;
- prohibit the accused from communicating directly with a person protected by the order or a member of the family or household in a threatening or harassing manner;
- going to or near the residence, place of employment, or business of a member of the family or household or of the person protected under the order; or the residence, child care facility, or school where a child protected under the order resides or attends. Art. 17.292. Tex. Code Crim. Proc. Magistrate's Order for Emergency Protection.
- Violation of An Emergency Protective Order
Violation of the emergency protective order results in a separate criminal offense punishable by a fine of as much as $4,000 or by confinement in jail for as long as one year or by both. An act that results in family violence or a stalking offense may be prosecuted as a separate misdemeanor or felony offense. If the act is prosecuted as a separate felony offense, it is punishable by confinement in prison for at least two years. Art. 17.292. Tex. Code Crim. Proc. Magistrate's Order for Emergency Protection
- What is An Affidavit of Non-Prosecution?
This affidavit is a legal document from the victim informing the authorities prosecution is not desired and requesting the case to be dropped.
- What Happens If My Spouse Executes an Affidavit of Non-prosecution?
The charging decision belongs to the government. In all likelihood, the State will prosecute the case anyway.
- What If There Is No Physical Evidence of Bodily Injury?
In many cases evidence of injury is slight, or no physical evidence of injury may exist at all. The State will prosecute the case anyway. The State can get a conviction on the testimony of the alleged victim without any physical evidence of bodily injury.
- What Are the Possible Penalties for a Conviction?
In Texas, the accused faces up to a $4,000.00 fine for a conviction, whether by a plea or a finding of guilt at trial. The accused may be incarcerated for up to one year in the county jail upon conviction, whether by a plea or a finding of guilt at trial. If the accused has a prior conviction for family violence, a second charge will be prosecuted as a third degree felony offense, carrying a range of punishment of not less than two (2) years or more than ten (10) years in the penitentiary and a fine up to $10,000.00. Tex. Pen. Code. § 12.21; § 12.34
For more information about what happens during family violence court proceedings in Texas, CLICK HERE.
SOURCE: Stuckle, Paul G. "A Criminal Defense Attorney's View of the Domestic Violence Industry." Kidjacked. 2010. <http://kidjacked.com/legal/violence.asp?page=7>
