The Affirmative Finding of Family Violence
Under Code of Criminal Procedure Article 42.013, when a defendant is convicted of or placed on deferred adjudication for an offense involving family violence, the court enters an “affirmative finding of family violence” in the judgment. The finding is permanent, visible on the face of the judgment, and cannot be expunged, sealed, or set aside.
What the Finding Does
The affirmative finding does not create consequences that would not otherwise exist. The consequences of a family-violence conviction — felony enhancement, firearms prohibition, ineligibility for nondisclosure — flow from the nature of the offense, not from the finding. What the finding does is make those consequences easy for the State to prove.
Without the finding, the State would have to relitigate in each future proceeding whether the prior offense involved family violence. With the finding on the face of the judgment, the State just points to it. The affirmative finding is an evidentiary shortcut: a permanent, indelible notation that this was a family-violence case.
Why It Matters
The finding matters because it makes enforcement automatic where it would otherwise require effort:
Felony enhancement. Under Penal Code § 22.01(b)(2), a subsequent assault against a family member, household member, or dating partner is a third-degree felony if the defendant has a prior family-violence conviction. The State could prove the prior was a family-violence case without an affirmative finding, but the finding eliminates any argument about it.
Firearms prohibition. 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 and applies regardless of whether the state judgment contains an affirmative finding. But the finding makes the federal prohibition easier to enforce: a judgment with the finding on its face is self-proving.
Nondisclosure ineligibility. Under Government Code § 411.074, deferred adjudication for an offense involving family violence is not eligible for an order of nondisclosure, except for Class C misdemeanors. Again, this is a consequence of the offense, not of the finding. But the finding ensures that no court will mistakenly grant nondisclosure by overlooking the family-violence nature of the case.
Deferred Adjudication
Many defendants accept deferred adjudication believing they are avoiding a conviction. In family-violence cases, deferred adjudication still results in an affirmative finding. The consequences that matter most — firearms, enhancement, nondisclosure ineligibility — all apply to deferred adjudication the same way they apply to a conviction. Deferred adjudication for a family-violence offense is not the deal most defendants think it is.
Permanence
The affirmative finding cannot be removed from the judgment. It is not subject to expunction or nondisclosure. It will appear on background checks, in subsequent prosecutions, and in any proceeding where the State needs to establish that a prior offense involved family violence. Once entered, it is there for life.
This is why the defense strategy in a family-violence case must focus on the outcome that matters: avoiding a conviction for an offense involving family violence. The finding follows the conviction; prevent the conviction and the finding never exists.
If you are facing family-violence charges, contact Bennett & Bennett at 713-224-1747.