Texas Family Violence and Domestic Assault FAQ's
Kevin Bennett has represented many individuals in Austin and throughout Travis County who have been arrested or charged with family violence, assault causing bodily injury to a family member or domestic assault crimes.
Although most of Mr. Bennett's clients come from a diverse variety of backgrounds, they usually share some of the same or similar questions and concerns regarding their misdemeanor or felony family violence charge.
For a free confidential consultation in your family violence case, contact a domestic violence defense attorney in Austin at The Law Office of Kevin Bennett at (512) 476-4626. You may also contact The Law Office of Kevin Bennett through email.
When Can Someone be Charged with Domestic Assault?
According to Texas Penal Code § 22.01, an individual can be charged with domestic assault if they intentionally, knowingly or recklessly cause bodily injury, threaten or physically contact a family member, household member or person they are in a dating relationship with.
Why Should I Hire an Attorney? The Victim Wants to Drop the Charges.
There is a serious misconception by defendants that an assault case can be dismissed by the alleged victim or that they can drop the charges. Although it certainly helps with the defense of the case when the alleged victim does not want the case prosecuted, it is only one aspect of the case.
Domestic violence cases are prosecuted every day in Travis County and in Texas courts despite the fact that the "victim wants the charges dropped." The best way to defend your case and increase your chances of having the charges dismissed is to hire a good criminal defense lawyer who regularly handles family violence cases in Austin, Tx.
What Is the Definition of a Family Member in Texas?
Domestic assault allegations often arise when an individual commits an assault against a family member. A family member is defined under Texas law as anyone who related by blood or by marriage, former spouses, parents of the same child, foster parents, and step-parents.
An individual can also be charged with domestic assault if they commit an assault against a household member. Texas law defines a household member as anyone who resides or previously resided in the same home, such as roommates.
What If the Victim Wasn't Really a Family Member?
If the alleged victim in the case does not fall under the legal definition of a family member or member of the same household under Texas law, then the case should not be charged as a family violence case. A skilled defense attorney can present this argument and any evidence to the prosecution or the Court.
What Does Bodily Injury Mean?
Under Texas Penal Code Section 1.07 (8), bodily injury means physical pain, illness, or any impairment of physical condition. As you can see, the definition of bodily injury under Texas law is very broad.
What If the Alleged Victim Wasn't Really Hurt or Injured?
Then it is imperative that you have a skilled defense lawyer to examine all of the evidence and make this argument to a prosecutor or before a judge or jury.
Can I Drop Domestic Violence Charges?
No. The State of Texas or the prosecutor has the power to drop a criminal charge, including a domestic violence charge. However, it can certainly help in defense of the case if the alleged victim or complaining witness does not want to press charges. If an alleged victim does not want to press charges, a defense attorney will usually draft an affidavit of non-prosecution for the alleged victim to review.
What is an Affidavit of Non-Prosecution?
An affidavit of non-prosecution is a legal document from an alleged victim that is provided to the prosecution in the case that states a desire for the case to be dismissed or not prosecuted. A good affidavit of non-prosecution will be custom drafted by the defense lawyer so that it is specific to each individual case and addresses any concerns that the court or a prosecutor may have.
Is Domestic Violence a Felony or Misdemeanor?
Under the Texas Penal Code, domestic violence charges can be classified as either a felony or misdemeanor. The classification may vary depending on the age of the victim, whether the offense resulted in bodily injury, whether the alleged offender has a previous criminal history and/or whether a weapon was used during the commission of the offense.
What is the Penalty Range for Family Violence or Domestic Assault?
The penalty range for family violence charges will depend on whether the case is classified as a felony or a misdemeanor. The penalties for domestic violence in Texas are as follows:
- An individual charged with a class C misdemeanor domestic violence offense can be penalized with a fine up to $500.
- An individual charged with a class B misdemeanor domestic violence offense can be penalized with a fine up to $2,000 and/or a jail sentence up to 180 days.
- An individual charged with a class A misdemeanor domestic violence offense can be penalized with a fine up to $4,000 and/or a jail sentence up to one year.
- An individual charged with a state jail felony domestic violence offense can be penalized with a fine up to $10,000 and/or a jail sentence ranging from 180 days to two years.
- An individual charged with a felony of the third-degree family violence offense can be penalized with a fine up to $10,000 and/or a prison sentence ranging from two to ten years.
- An individual charged with a felony of the second-degree family violence offense can be penalized with a fine up to $10,000 and/or a prison sentence ranging from two to 20 years.
- An individual charged with a felony of the first-degree family violence offense can be penalized with a fine up to $10,000 and/or a prison sentence ranging from five to 99 years or life imprisonment.
What are the Collateral Consequences of a Family Violence Conviction?
In addition to the criminal penalties associated with a family violence conviction, there are additional and often equally severe collateral consequences of a finding of domestic violence.
- An individual convicted of family violence is prohibited under both Texas and Federal law from possessing a firearm. This obviously limits your ability to serve as an armed guard, law enforcement officer or in the military. This consequence would also prohibit you from possessing a firearm for personal protection or for purposes of hunting with a firearm.
- A domestic violence conviction will stay on your criminal record and can limit employment, housing, and educational opportunities. Many employers, landlords, and institutions of higher education will automatically disqualify someone from opportunities due to a family violence case on their criminal record.
- A family violence finding or admission of guilt to family violence can have devastating consequences to an individual's immigration status and can lead to deportation and inadmissibility for non-citizens. Even deferred adjudication in a family violence case is considered an admission of guilt and can carry all of the same collateral consequences as a conviction for family violence.
- A previous family violence conviction or finding can be used to enhance any future criminal charges if you are arrested for family violence in the future.
- Depending on your circumstances, there may be additional collateral consequences as well. It is very important that consult with a criminal defense attorney so that you adequately understand all of the possible consequences for a family violence conviction.
I Successfully Complete Deferred Adjudication, Can I get my record sealed?
No. Texas law specifically states that deferred adjudication cases involving family violence cannot be expunged or sealed. The case, arrest, and all records will remain on your permanent record even though the case did not result in a formal conviction.
What Are the Different Types of Protective Orders in Texas?
- Magistrate's Order for Emergency Protection (MOEP) or EPO
- Temporary Ex Parte Protective Order
- Final Protective Order
What is an Emergency Protective Order?
An EPO is a court order issued against the accused after an arrest for family violence and is meant to stop an individual from engaging in abusive, threatening or harassing behavior. It may also prevent an accused from contacting the victim in any way.
The order is usually issued by the magistrate at the arraignment hearing shortly after an individual has been arrested and while they are still in jail. Depending on the circumstances, an EPO can be issued anywhere from 31 days up to 91 days but cannot be extended by another EPO. An EPO can also include a "kick out" order to evict the accused from their residence.
A violation of an EPO can result in a new misdemeanor or felony criminal charge, depending on the circumstances of the alleged violation.
Who can Request an Emergency Protective Order?
A request for an emergency protective order can be made by the victim, or on behalf of the victim, by a legal guardian, peace officer or prosecutor. A judge may also independently issue an EOP. This means that a protective order may be issued despite the fact that an alleged victim does not want a protective order or to press charges against the accused.
What is a Temporary Ex Parte Protective Order?
A Temporary Ex Parte Order is an immediate court order of protection meant to stop any abusive, threatening or harassing behavior and also prevents an alleged abuser from contacting the victim in any way. It is intended to protect the victim from further abuse or family violence until a full court hearing for a Final Protective Order takes place. A Temporary Ex Parte Protective Order can last for up to 20 days and can be extended at the request of the applicant or court.
A violation of a Temporary Ex Parte Protective Order is punishable via civil contempt of court by up to six months in jail and/or $500 fine.
What is a Final Protective Order?
A Final Protective Order is a court order meant to stop an individual from engaging in abusive, threatening or harassing behavior, and from contacting the victim in any way. It is intended to protect the victim from further abuse and violence.
A final protective order is effective for "the period stated in the order, not to exceed two years; or if a period is not stated in the order, until the second anniversary of the date
What Can Be Ordered in a Protective Order?
A Protective order can include various orders, including but not limited to:
- Prohibiting the accused from committing any acts that constitute family violence, including but not limited to assault, stalking, sexual assault, harassment
- "Kick out" order to evict the accused from their residence for sixty (60) days or more;
- Prohibit the accused from possessing or being in the vicinity of a firearm, weapon, or ammunition;
- 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;
- Prohibit the accused from community directly with a person protected by the order or member of the family or household in any manner whatsoever
- Going to or within a certain distance of 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.
What Happens if I Violate a Protective Order?
If you violate a final protective order or an emergency protective order you can be charged with a new and separate criminal offense. Violation of either a final protective order or EPO is generally considered a Class A misdemeanor punishable by up to a year in jail and/or a fine up to $4,000. However, if a protective order is violated by a defendant who has previously been convicted of violation of a protective order two or more times or has violated the protective order by committing an assault or the offense of stalking, the violation of protective order charge can be charged as a third degree felony punishable by 2 to 10 years in prison and a fine up to $10,000.
What if My Spouse or Girlfriend Says they will not enforce the Protective Order?
It does not matter; it is still a violation and you are subject to arrest. No one can give you permission to violate a protective order, including the accuser. Reconciliatory actions or agreements made by persons affected by a protective order do not affect the validity of the order or the duty of a peace officer to enforce the order.
When and where will I go to Court in Travis County?
If you have been arrested for a domestic violence offense in Travis County, your case will likely be assigned to Travis County Court at Law # 4. Travis County Court at Law Four is located on the third floor of the Blackwell-Thurman Criminal Justice Center at 509 West 11th Street, Austin, Texas 78701. Most domestic assault or family violence cases will require multiple court appearances over a period of time. For specific court or court date information, you should contact the court directly.
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