Houston Family Violence Defense Lawyer
In Texas, “family violence” is not a single criminal charge, but a legal designation that attaches to offenses committed against family members, household members, and current or former dating partners. Texas Family Code § 71.004 defines family violence to include any act by a member of a family or household against another member that is intended to result in physical harm or that is a threat of imminent physical harm. The designation transforms what would otherwise be an ordinary criminal case into one carrying enhanced penalties and permanent collateral consequences.
We defend family-violence cases at every level, from Class C misdemeanor assault to first-degree felony continuous violence, in Harris County and throughout Texas.
Types of Family Violence Offenses Under Texas Law
1. Assault—Family Violence (Penal Code § 22.01)
The most common family-violence charge in Harris County is assault under Texas Penal Code § 22.01. An assault occurs when a person intentionally, knowingly, or recklessly causes bodily injury to another, threatens another with imminent bodily injury, or causes physical contact that the person knows or should reasonably believe the other will find offensive or provocative. When the complainant is a family member, household member, or person in a dating relationship with the defendant, the charge carries the family-violence designation.
| Offense | Classification | Penalty Range |
|---|---|---|
| Assault by contact—family violence | Class C misdemeanor | Fine up to $500 |
| Assault by threat—family violence | Class C misdemeanor | Fine up to $500 |
| Assault causing bodily injury— family violence | Class A misdemeanor | Up to 1 year in jail, $4,000 fine |
| Assault causing bodily injury—family violence, with prior family-violence conviction | Third-degree felony | 2–10 years in prison, $10,000 fine |
| Assault by strangulation or suffocation—family violence | Third-degree felony | 2–10 years in prison, $10,000 fine |
| Aggravated assault—family violence (§ 22.02) | First- or second-degree felony | 2–20 years or 5–99 years, depending on circumstances |
2. Continuous Violence Against the Family (Penal Code § 25.11)
Texas Penal Code § 25.11 creates a separate offense—continuous violence against the family—when a person commits two or more acts of assault against a family member, household member, or dating partner during a 12-month period. This is a third-degree felony carrying 2–10 years in prison. The statute does not require prior convictions; the two assaultive acts alleged in the indictment are the basis of the charge itself. A jury need not agree unanimously on which specific acts occurred, only that at least two occurred within the 12-month window. This makes section 25.11 charges particularly dangerous for defendants.
3. Violation of Protective Order (Penal Code § 25.07)
Violating a protective order issued under Title 4 of the Family Code is a Class A misdemeanor on its own. A second violation, or a violation that involves a threat, tracking device, or going near the protected person’s residence, workplace, or child’s school, is a third-degree felony. Violation of a protective order is prosecuted aggressively, and the terms of protective orders are often broad enough that accidental violations occur.
How a Family Violence Conviction Can Wreck Your Life
A family-violence conviction in Texas will affect your life long after a guilty plea. Many of these effects are permanent and cannot be undone even after completion of a sentence or probation. Find a lawyer who knows the law and has the experience to fight these charges.
1. An Affirmative Finding of Family Violence is Bad
When a defendant is convicted of or receives deferred adjudication for an offense involving family violence, the court enters an “affirmative finding of family violence” in the judgment. Under Texas Code of Criminal Procedure Article 42.013, this finding is permanent. It cannot be expunged or sealed through a nondisclosure order. A single affirmative finding ensures that any later assault against a family member, household member, or dating partner is automatically charged as a third-degree felony.
Even if the court does not make the affirmative finding, a family-violence conviction can wreck your life. The affirmatice finding just ensures it.
2. You Will Lose Your Firearms
Federal law (18 U.S.C. § 922(g)(9)) prohibits anyone convicted of a “misdemeanor crime of domestic violence” from possessing firearms or ammunition. This prohibition is permanent. There is no mechanism under federal law to restore firearms rights after a family-violence misdemeanor conviction. A protective order also triggers a separate federal firearms prohibition under 18 U.S.C. § 922(g)(8) for the duration of the order. For clients who own firearms, hunt, or work in law enforcement or security, a family-violence conviction or protective order ends their ability to possess any firearm.
3. Deferred Adjudication is not Always the Answer
Under Texas Code of Criminal Procedure Article 42A.102, deferred adjudication is available for most family-violence offenses. However, a deferred adjudication for a family-violence offense still results in an affirmative finding of family violence, still triggers the federal firearms prohibition, and still counts as a prior conviction for enhancement purposes under section 22.01(b)(2). Deferred adjudication for family violence is not eligible for an order of nondisclosure under Government Code § 411.074 unless the offense was a Class C misdemeanor. For most family-violence cases, deferred adjudication does not prevent the collateral or secondary effects that matter most.
4. Protective Orders are Difficult to Follow and May Lead to a New Offense
A family-violence conviction or finding typically results in a protective order under Texas Family Code chapter 85. A protective order can prohibit a person from going near the protected individual’s home, workplace, or children’s school; communicating with the protected individual directly or through third parties; and possessing firearms. Protective orders remain in effect for up to two years and can be extended. If you make a mistake while under a protective order, you could end up with a violation. A violation of a protective order is a separate criminal offense.
5. Losing Custody of Your Children
A family-violence finding directly affects child custody proceedings. Under Texas Family Code § 153.004, the court must consider evidence of family violence in determining the best interest of the child. A finding or conviction of family violence creates a rebuttable presumption that it is not in the child’s best interest for the person who committed the violence to have unsupervised access to the child. A family-violence arrest or charge may also trigger a Child Protective Services investigation, particularly when children were present during or witnessed the alleged offense.
6. Serious Immigration Consequences
A family-violence conviction is an aggravated felony or a crime of moral turpitude for immigration purposes, depending on the specific offense. Under federal immigration law, a conviction for a crime of domestic violence, stalking, child abuse, or violation of a protective order makes a noncitizen deportable under 8 U.S.C. § 1227(a)(2)(E). Even a misdemeanor family-violence conviction can result in removal proceedings. For noncitizen defendants, the immigration consequences of a family-violence conviction are often more severe than the criminal sentence itself.
Defense Strategies in Family Violence Cases
1. Self-Defense
Every lawyer dealing with an assault case immediately thinks of self-defense. It’s obvious. Texas law provides a right of self-defense under Penal Code § 9.31. A person is justified in using force against another when and to the degree the person reasonably believes the force is immediately necessary to protect against the other’s use or attempted use of unlawful force. In family-violence cases, both parties frequently have injuries, and the question is which party was the initial aggressor. Witness statements, 911 call recordings, photographs, and medical records are critical in establishing self-defense.
2. Consent
Self-defense is obvious, but unless the violence involved serious bodily injury, consent is probably a better defense. People in volatile relationships often wind up in escalating tit-for-tat cycles of violence that end only when someone calls the police. Most self-defense cases are also consent cases—if you punch me in the nose you are consenting to my hitting you back—and consent is easier to maintain as a defense in a criminal case.
3. False Accusations
Family-violence allegations arise in the context of relationships under stress: divorces, custody disputes, financial conflicts, and infidelity. False accusations are common. The alleged victim’s motive, prior inconsistent statements, and the absence of corroborating evidence are the primary tools for exposing a false accusation. In Harris County, the State will prosecute a family-violence case even when the complainant recants or refuses to cooperate.
4. Lack of Bodily Injury
For a Class A misdemeanor assault, the State must prove bodily injury: physical pain, illness, or physical impairment. The absence of documented injuries, the lack of medical treatment, and inconsistencies between the alleged injury and the complainant’s account are all viable defense avenues.
5. Affidavit of Non-Prosecution
Other lawyers seem to love these. There are things that a complainant can do to help the defense lawyer make the case go away, but an affidavit of nonprosecution is basically useless. The mere fact that the complainant (the alleged victim) does not want to prosecute is not going to stop the State from prosecuting. What can help is getting the complainant their own lawyer. Where we represent the defendant, we can help the complainant find counsel who can advocate on their behalf and push the State to follow their wishes. Where we do not represent the defendant, we can represent the complainant directly.
6. Challenging the Family Violence Designation
The family-violence designation requires proof that the complainant and defendant had a specific relationship—family, household, or dating. If the relationship does not meet the statutory definition, the family-violence designation should not apply, and the case should be prosecuted as an ordinary assault without the enhanced penalties and collateral consequences.
The Harris County Family Violence Process
In Harris County, family-violence cases follow a distinct procedural path. Texas law requires a warrantless arrest when an officer has probable cause to believe family violence has occurred. After arrest, the defendant is taken to the Harris County Joint Processing Center. A magistrate sets bond conditions, which typically include a no-contact order prohibiting communication with the complainant. In many cases, an emergency protective order is issued at magistration, effective for 61 to 91 days, before any adversarial hearing.
Family-violence cases in Harris County are prosecuted by the District Attorney’s Family Criminal Law Division. This division has its own intake prosecutors and its own trial courts. The State will proceed with prosecution even if the complainant does not want to press charges, does not appear for court, or actively opposes the prosecution.
Frequently Asked Questions
Can a family-violence charge be dismissed if the complainant does not want to prosecute?
The complainant does not control whether the case is prosecuted. In Texas, criminal charges are brought by the State, not by the alleged victim. The Harris County District Attorney’s Office routinely prosecutes family-violence cases over the complainant’s objection. However, an uncooperative complainant makes the State’s case harder to prove, and an experienced defense lawyer can use the complainant’s reluctance as leverage in negotiations or at trial.
Will I be able to go home after a family-violence arrest?
Typically not immediately. Bond conditions in family-violence cases almost always include a no-contact order that prohibits the defendant from returning to the shared residence or communicating with the complainant. The no-contact order remains in effect until the court modifies it, which usually requires a hearing and the complainant’s consent. An emergency protective order, if issued, adds additional restrictions for 61–91 days.
Can a family-violence conviction be expunged?
A conviction cannot be expunged. If the case is dismissed or results in an acquittal, it may be eligible for expunction. Deferred adjudication for a family-violence offense is generally not eligible for an order of nondisclosure unless it was a Class C misdemeanor. The affirmative finding of family violence that accompanies a conviction or deferred adjudication is permanent and cannot be removed from the record.
What is the difference between an emergency protective order and a final protective order?
An emergency protective order (EPO) is issued by a magistrate at the time of arrest, without a hearing, and lasts 61 to 91 days. A final protective order is issued by a court after a hearing under Texas Family Code Chapter 85 and can last up to two years. Both carry criminal penalties for violation. A defendant can contest a final protective order at a hearing, but an EPO cannot be contested—it expires on its own terms.
Does a family-violence charge affect my right to own firearms?
Yes. A conviction for any misdemeanor crime of domestic violence permanently prohibits firearms possession under federal law (18 U.S.C. § 922(g)(9)). A protective order prohibits firearms possession for the duration of the order under 18 U.S.C. § 922(g)(8). There is no exception for law enforcement officers, security personnel, or military members. The federal firearms prohibition applies regardless of whether the state sentence includes jail time.
Contact a Houston Family Violence Defense Lawyer
If you are facing family-violence charges in Houston or anywhere in Texas, contact us at 713-224-1747. Mark Bennett is Board Certified in Criminal Law and Criminal Appellate Law by the Texas Board of Legal Specialization—one of 40 defense lawyers in Texas who hold both certifications. We defend family-violence cases from arrest through appeal.