San Antonio Family Violence Lawyer: Assault Family Violence Charges in Bexar County

The neighbor called at 11:40. By midnight two officers were at an apartment off Loop 410, one with him in the parking lot, one with her in the kitchen. Nobody asked his side until he was in the back of the car, and he answered. By morning he was at the Magistrate's Office on Comal Street, holding a bond sheet and a magistrate's order for emergency protection he had not yet read. At ten she called his mother to say she never wanted any of this. He assumed that would end it. It does not, and the reasons are what this page, from a San Antonio family violence lawyer, is about.

Put plainly, in Texas assault causing bodily injury to a family member, a household member, or a dating partner is a Class A misdemeanor, punishable by up to a year in jail. It becomes a felony when the State alleges a prior family violence conviction or that the accused impeded the other person's breathing or blood flow, and a more serious felony when it alleges both. The complainant is a witness, not a party; the case belongs to the State. The consequences outlast any sentence: firearm rights, and a record that an order of nondisclosure cannot seal.

What the State has to prove in an assault family violence case

Under Penal Code § 22.01(a)(1), the State must prove that the accused intentionally, knowingly, or recklessly caused bodily injury to another person. Then it must prove the relationship, defined in the Family Code. That element is what separates this charge from a bar-fight assault.

"Family" under § 71.003 reaches blood relatives and in-laws, former spouses, and two people who share a child, married or not, whether or not they live together. "Household" under § 71.005 means people living in the same dwelling, related or not, so roommates count. A "dating relationship" under § 71.0021(b) is a continuing relationship of a romantic or intimate nature; a casual acquaintance does not qualify.

The definition of family violence in § 71.004 excludes "defensive measures to protect oneself."

Where the State alleges two or more of these assaults within twelve months or less, it may charge continuous violence against the family under Penal Code § 25.11. The jury must agree that two or more assaults happened inside the window, but not on which ones.

Punishment range for family violence assault in Texas

• Class A misdemeanor: Up to 1 year in jail, fine up to $4,000 (Penal Code §§ 22.01(b), 12.21)
• Third-degree felony: prior family violence conviction, or impeding breath or circulation: 2 to 10 years in prison, fine up to $10,000 (§§ 22.01(b)(2), 12.34)
• Third-degree felony: continuous violence against the family: 2 to 10 years in prison, fine up to $10,000 (§§ 25.11(e), 12.34)
• Second-degree felony: prior conviction and impeding: 2 to 20 years in prison, fine up to $10,000 (§§ 22.01(b-3), 12.33)

Under § 22.01(f), a prior deferred adjudication for family violence counts as a prior conviction, even if probation ended in dismissal, and so does a substantially similar out-of-state conviction. An old plea can make the next case a felony.

Consequences outside the courtroom

Firearms first. Under Penal Code § 46.04(b), a person convicted of a Class A assault against a member of the person's family or household commits a crime by possessing a firearm before the fifth anniversary of release from jail or community supervision, whichever is later; that Texas bar does not reach a dating-partner case. Federal law reaches further: under 18 U.S.C. § 922(g)(9), a person convicted of a "misdemeanor crime of domestic violence," which a Texas family violence conviction can be, may not possess a firearm or ammunition, and for a spouse, co-parent, or cohabitant that federal bar has no five-year end like the Texas one. While the case is pending, the charge alone bars a Texas license to carry under Government Code § 411.172(a)(4).

Then the record. Many people who complete deferred adjudication in Texas may ask for an order of nondisclosure. Government Code § 411.074(b) closes that door for any offense involving family violence, for anyone ever convicted of or placed on deferred adjudication for one, and wherever the court has made an affirmative finding of family violence. That finding, written into the judgment, is what employers and landlords see. A case dismissed without deferred adjudication, or tried to an acquittal, is a different matter and may be eligible for expunction.

A non-citizen needs advice about immigration consequences before any plea.

How a family violence case moves in Bexar County

After an arrest in San Antonio, the first stop is the Magistrate's Office on Comal Street, where bond is set and a magistrate's order for emergency protection may issue under Code of Criminal Procedure article 17.292. That order binds before any judge has heard the case. Under Penal Code § 25.07, violating it, or a bond condition in a family violence case, is a separate crime: contact the order forbids, going near a place it names, possessing a firearm. Under § 25.07(d), a reconciliation between the two people does not change the order.

The Bexar County District Attorney's Office decides whether and what to file. A complainant can tell the prosecutor what she wants, but she cannot dismiss the case. What happens when the complainant wants to drop the charges is covered in a separate post.

Misdemeanors are heard in the Bexar County Courts at Law; felony charges go to a grand jury and then to the district courts.

What this office looks at in a family violence case

The recordings come first: the 911 call, the body-camera video, the photographs. They do not always match the report.

Then each element. What proves bodily injury? Does the relationship fit a Family Code definition, or was it assumed? If the State alleges impeding, what physical or medical evidence supports it beyond one sentence in a statement? If it alleges a prior conviction, do the old judgment and plea papers establish what § 22.01 requires?

Statements get their own review: what the accused said in the patrol car, and whether he was in custody and warned. Code of Criminal Procedure article 38.23 bars the use at trial of evidence obtained in violation of the law, including through an unlawful entry into the home. So does who acted first, and whether an apparent assault was a defensive measure.

Questions people ask about family violence charges in Texas

Can the complainant drop a family violence charge in Texas?

No. A criminal case is brought by the State of Texas, not by the person who called the police. In Bexar County, the District Attorney's Office decides whether to file, reduce, or dismiss. Her wishes can matter to that decision, but she has no power to end the case herself.

Is choking always a felony in Texas?

Not automatically, but it is charged as a third-degree felony when the State alleges it. Under Penal Code § 22.01(b)(2)(B), assault on a family member, household member, or dating partner is a third-degree felony if the accused impeded normal breathing or blood circulation by pressure on the throat or neck or by blocking the nose or mouth. With a prior family violence conviction, it is a second-degree felony.

Can I own a gun after a family violence conviction in Texas?

If the complainant was a member of your family or household, Penal Code § 46.04(b) bars possession of a firearm for five years after release from jail or community supervision, whichever is later; that Texas bar does not cover a dating partner. Federal law, 18 U.S.C. § 922(g)(9), separately bars firearms and ammunition for anyone convicted of a qualifying misdemeanor crime of domestic violence, with no Texas-style time limit for spouses, co-parents, or cohabitants.

Can a family violence case be sealed in Texas?

Not through an order of nondisclosure. Government Code § 411.074(b) bars nondisclosure for any offense involving family violence, for anyone previously convicted of or placed on deferred adjudication for one, and where the court made an affirmative family violence finding. A dismissal without deferred adjudication, or an acquittal, may be eligible for expunction instead.

Back to the paper from Comal Street

The man with the bond sheet thought the phone call to his mother had settled things. It had not. The case belongs to the State, its grade turns on the relationship, the injury alleged, and his record, and the order in his hand binds him while it runs. The number for this office is (210) 201-3096, and a written message can go through the contact form.

By Christian O. Vega, Attorney at Law

The Law Office of Christian Vega · 130 E Travis St, Suite 425, San Antonio, Texas 78205

Texas State Bar No. 24121180

This is an attorney advertisement. Christian O. Vega is responsible for the content of this page. Past results do not guarantee similar outcomes in any future case. The information here is general legal information about Texas law, not legal advice for your specific situation. Reading this page does not create an attorney-client relationship.