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Charged with Assault Family Violence? Top ten things to know

On Behalf of | Jan 12, 2023 | Domestic Violence

Getting charged with assault family violence in Texas causes trauma for everyone involved. I represent many good people from good families who have one argument that gets a little out of hand. Someone calls the police, thinking officers will arrive and merely diffuse the situation. Instead, the officers make an arrest, a judge issues a protective order that forces your family apart, and you find yourself facing potentially life-altering consequences in the criminal justice system.

My name is Justin Wilson. I’m a domestic violence attorney. And I’m here to help. If you’ve been arrested for a domestic violence charge, here are ten things I want you and your family to know.

1. Domestic violence investigation

For more information on specific domestic violence charges, click here.

Arrest for assault family violence is practically mandatory

In recent years, our Texas state legislature accepted a study, which showed that incidents of domestic violence decrease when two things happen: 1) the “aggressor” is placed under arrest; and 2) the “aggressor” completes a Batterers Intervention and Prevention Program (“BIPP”). Laws were written, and most police agencies throughout the state adopted the policy that, once an officer can determine the aggressor, that officer will make an arrest. While Texas does not have an official mandatory arrest policy regarding allegations of domestic violence, as the state of New York has for instance, practically speaking, if the officer thinks there is a chance you were the aggressor in a domestic disturbance, you are going to get arrested.

Probable cause

Officers are supposed to develop probable cause before placing anyone under a warrantless arrest. Probable cause for a warrantless arrest exists if:

the facts and circumstances within the arresting officer’s knowledge, and of which he has reasonably trustworthy information, are sufficient to warrant a prudent man in believing that the person arrested had committed or was committing an offense.

Amador v . State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009).

In the context of the public policy described above, officers seem to have lost site of truly developing probable cause and simply seek to make an arrest and pass the buck to someone else. It’s one thing to exercise caution and place a person under arrest to prevent further instances of domestic violence after truly developing probable cause. It’s another thing to rush to make an arrest and then wash your hands of the case with the attitude of ‘we’ll let the lawyers sort it out.’ A domestic violence arrest triggers consequences of which most people, including police officers, simply are not aware.

2. What happens after an arrest for domestic violence?

Municipal or county jail

Once police officers make a custodial arrest, they take the arrested person to either their city or county jail. There, the arrested person is booked in, fingerprinted, photographed, and waits up to 48 hours to see a judge. The judge sets bail and bond conditions that the arrested person must abide while their case is pending in the court system. Someone will have to post bail, either in the form of a cash bond or surety bond. Then, in accordance with Texas Code of Criminal Procedure, Art. 17.29(b) law enforcement agency must notify the complaining witness in the case of the arrested person’s imminent release. After that lengthy process, the arrested person is finally released. But let me caution you – you may receive notice of an emergency protective order of bond conditions that prevent you from returning home.

Assault family violence hold

Texas Code of Criminal Procedure, Art. 17.291 authorizes the law enforcement agency holding a person arrested for assault family violence to delay that person’s release from jail up to four hours after bond has been posted. The magistrate who sets bail and bond conditions can choose to delay the arrested person’s release for up to 24 hours if the magistrate believes there is a chance domestic violence will occur soon after the arrested person is released. And if the magistrate finds that, in the ten years prior to the arrest, the person has been arrested more than once for family violence or for any other offense involving the use of a deadly weapon, the magistrate can authorize the jail the hold the arrested person up to 48 hours after bond has been posted.

3. Emergency protection order

Domestic violence protective order

Article 17.292 of the Texas Code of Criminal Procedure authorizes a magistrate to issue an emergency protective order (“EPO”) when a person is arrested for an assault involving family violence. The magistrate can issue the EPO even if no party involved in the case requests one. The other parties who can request an EPO are:

  • The complaining witness;
  • The guardian of the complaining witness;
  • A peace officer; or
  • An attorney for the prosecution

Most commonly, an EPO is issued on the magistrate’s own initiative, or by request of the complaining witness. But be careful for two things: 1) occasionally the arresting officer will take it upon themselves to request an EPO; and 2) more often the arresting officer will pressure the complaining witness to request an EPO and will be misleading about the consequences of an EPO.

What is a protective order?

A magistrate’s emergency order of protection may prohibit the arrested person from:

  • Committing an act of family violence against the protected individual(s)
  • Communicating directly with the protected individual(s) in a threatening or harassing manner
  • Communicating a threat to the protected individual(s) through someone else
  • Communicating with the protected individual(s) in any way but through at attorney
  • Going to or near a place of residence, work, school, or childcare facility
  • Possessing a firearm

How long does a protection order last?

If the EPO is issued for misdemeanor or third-degree felony assault family violence, it remains in effect from 31 to 61 days. If the EPO is issued for assault involving family violence where either a deadly weapon was used or a serious bodily injury occurred, the EPO will remain in effect from 61 to 91 days.

How to drop a protection order

Emergency protective orders can be modified under Article 17.292(j). Your domestic violence attorney can file a motion to modify the emergency order of protection with the issuing magistrate. Notice must be sent to the arrested person and the protected individual(s), and a hearing must take place. After a hearing, the magistrate can modify the EPO to allow the arrested person to come back home and communicate directly with the protected individual(s), or the magistrate can remove the EPO altogether. For a motion to modify the protective order to be effective, the protected person must want the EPO modified.

4. Violation of protective order

Is it a crime to violate a protective order in Texas?

Yes. If the arrested person received notice of the protective order and violates its terms in any way, the arrested person can be charged with a Class A Misdemeanor, punishable by up to a year in the county jail and up to a $4,000 fine. If the arrested person violates a protective order more than once during a 12-month period, the arrested person can be charged with a third-degree felony, subject to a prison sentence of 2 to 10 years and a fine up to $10,000.

What happens if the victim violates the order of protection?


Art. 17.292(g), Code of Criminal Procedure

I see this situation happen all the time. The protected person reaches out to the arrested person through text, email, or phone call. They may make arrangements to see each other. And everything is fine, until it’s not. A disagreement occurs or hard feelings emerge. Police are called. And as Art. 17.292(g) makes clear, no person may give permission to anyone else to violate a provision of a magistrate’s protective order.

5. Writ of habeas corpus

Emergency protective orders are not the only way that a magistrate can make life difficult for a family while an allegation of assault family violence is pending. Magistrates can set bail at a dollar amount that is too high for the arrested person’s family or friends to afford, or they can set bond conditions that divide a family. If we need to get your matter in front of a different judge to reduce bail or modify bond conditions, we file an application for a writ of habeas corpus.

Collin County bond conditions

I handle a lot of domestic violence cases, and I’ve recently noticed a change in Collin County practices. For those who have their bail and bond conditions set by a municipal judge, the judge will typically issue an emergency protective order, a reasonable bail, and it is fairly easy for us to modify the EPO. And if the judge refuses to modify the EPO, it will expire after 31 to 61 days, and your life can return to normal.

For those who have their bail and bond conditions set by the Collin County magistrate, I’m seeing an increasing frequency of the judge issuing bond conditions that require the arrested person to stay away from the residence and not communicate directly with the protected individual(s) for the entire time the arrested person is out on bond. You will be on bond until your case is resolved. To put that in perspective, the District Attorney’s Office has up to two years to file a misdemeanor and up to three years to present a felony allegation of assault family violence to the grand jury. In Collin County, it is not uncommon for misdemeanors to take nine or twelve months to resolve, and felonies can take even longer.

Modify bond conditions

If you were charged with assault family violence in Collin County and the magistrate set bond conditions prohibiting you from returning home and communicating with your family, contact me. We can file an application for a writ of habeas corpus to get your matter in front of a different judge and have those bond conditions modified to allow you to return home and communicate with your family.

6. Texas assault bodily injury family violence dismissed or dropped

Based on what we see in movies and television, many people mistakenly believe that all they have to do is tell the police they don’t want to press charges and the case is over. If you’ve been charged with assault family violence, however, the complaining witness has no authority to drop charges. Only the prosecutors have the power to dismiss a case.

I have a strong track record for convincing prosecutors to reduce the charges or drop them altogether. For example, the allegation of assault family violence by impeding breath carries the punishment range of a third-degree felony. If we can convince the prosecutors that they cannot prove the element of impeding an airway, then we can reduce the charge from a third-degree felony to a Class A misdemeanor. Another example is, say we start with an allegation of Class A misdemeanor assault family violence and we can convince the prosecutor that the alleged contact was merely offensive rather than painful, then we can get the charge reduced to a Class C misdemeanor, which is the equivalent of a speeding ticket.

Click here for more information on the strategies I use to convince prosecutors to reduce or drop charges.

For examples of domestic violence cases I have gotten dismissed, click here.

7. Affidavit of non-prosecution

An affidavit of non-prosecution plays an important role in getting a domestic violence charge reduced or dismissed. It is a sworn statement where the complaining witness can tell the prosecutors exactly why he or she does not want the case prosecuted. Writing an affidavit of non-prosecution, however, does not automatically mean the prosecutors will drop the case. Prosecutors will look to see if they can prove their case without the complaining witness’s testimony, or they may still subpoena the complaining witness to testify in spite of the affidavit. A skilled domestic violence attorney can use the affidavit of non-prosecution to convince the prosecution that they absolutely cannot prove their case without a cooperative complaining witness and trying to force the complaining witness to testify against their will is a plan that simply will not work.

8. Grand jury defense packet

If you have been charged with assault family violence, your case will eventually go before a grand jury. Grand jury proceedings are held in secret. A prosecutor or police officer presents evidence of the charge to the twelve grand jurors, and the grand jurors either 1) affirm probable cause and issue an indictment; or 2) determine the evidence does not support probable cause and issue an indictment for a reduced charge or a no-bill, which effectively dismisses the case.

What is a grand jury defense packet?

While the defense does not have the opportunity to cross examine witnesses at the grand jury hearing, we do have the ability to submit a grand jury defense packet. The grand jury defense packet includes affidavits of non-prosecution, letters from counselors, character references, and written legal argument from your domestic violence attorney. Prior to the grand jury convening on your case, your attorney can prepare and submit the packet and potentially bring the case to an end.

When to hire a domestic violence attorney?

Many people charged with felony assault family violence make the mistake of waiting until after the case has been indicted to hire an attorney. I strongly recommend hiring an attorney shortly after the arrest. The reason is so that your attorney will then have time to prepare and submit a strong grand jury defense packet on your behalf. A strong packet can result in a felony charge being no-billed or indicted only as a misdemeanor. With a no-bill, you will eventually be eligible to expunge your record. If the grand jury indicts your case as a misdemeanor, you can take more risks to fight the case at trial without the fear of a felony conviction.

9. Affirmative finding of family violence

Texas Code of Criminal Procedure, Art. 42.013 requires a judge to make an affirmative finding of family violence in the written judgement of the court for any offense involving family violence. Five words in a court judgement may not seem like much to worry about, but an affirmative finding of family violence carries significant long-term consequences, which include:

  • Making it unlawful to possess or transfer a firearm or ammunition
  • Prohibiting you from volunteering at your children’s school
  • Triggering Texas Penal Code section 25.11, which charges a second allegation of family violence as a third-degree felony, regardless how minor the allegation may be

It is incredibly important for anyone charged with assault family violence to do everything possible to resolve the case without an affirmative finding of family violence.

10. Domestic violence expungement

There are three different paths to making you eligible for an expunction:

  • Get your case dismissed or no-billed
  • Get the charge reduced to a Class C misdemeanor with deferred adjudication
  • Go to trial and win

If you go to trial and win, you will immediately become eligible for an expunction. With the other two paths, you must wait for the statute of limitations to run before you can petition for a complete expunction. Shorter waiting periods apply for petitioning for a partial, or “waiting period,” expunction.

Once an arrest has been expunged, you can legally deny it ever occurred. As a domestic violence attorney, my goal is always to resolve my clients’ cases in a manner that makes them eligible to expunge their record. If you or someone you care about has been charged with assault family violence, contact me to schedule a free consultation. I look forward to helping you and your family get through this time and put it behind you.