Assault Family Violence in Texas: What You're Up Against

Assault Family Violence is one of the most aggressively prosecuted misdemeanors in Texas. Police are trained to arrest someone when they're called to a domestic dispute. Prosecutors have specialized family-violence divisions. And the conviction carries a federal lifetime firearm ban that most defendants do not understand at the time of the plea.

If you've been arrested, here is what the charge actually means in Texas, and where the real defense work happens.

Dan Wyde explains how AFV is charged in Texas and what an effective defense looks like.

What Is "Assault Family Violence"?

"Assault Family Violence" is not a separate offense — it is a regular assault charge under Penal Code § 22.01 with a family-violence finding attached. The state must prove two things:

1. An assault — intentionally, knowingly, or recklessly causing bodily injury to another, OR intentionally or knowingly threatening another with imminent bodily injury, OR intentionally or knowingly causing physical contact when the person knows or should know the other will regard the contact as offensive or provocative; AND
2. The alleged victim is a family or household member or person in a dating relationship as defined by the Family Code.

"Bodily injury" is broadly defined — pain alone counts. There is no requirement of visible injury, marks, or medical treatment. A grab, a shove, a slap that does not leave a mark — all can support the charge.

Who Counts as "Family"?

The category is broader than people expect. It includes:

• Current and former spouses
• People who have a child together
• Foster parent and foster child
• Parents, children, siblings, grandparents, in-laws — consanguinity or affinity
• Current and former roommates
• Current and former dating partners (no minimum length of relationship)

Penalty Levels

Class A Misdemeanor — Standard Charge

Up to 1 year in county jail and a $4,000 fine. Plus the family-violence finding, which carries the collateral consequences below.

Third-Degree Felony — Enhanced

The charge becomes a third-degree felony (2 to 10 years prison, $10,000 fine) when:

• The defendant has a prior family-violence conviction; or
• The offense involves strangulation or suffocation — impeding the normal breathing or blood circulation of the victim by applying pressure to the throat or neck or blocking the nose or mouth.

The strangulation enhancement is one of the most common upcharges in Texas family-violence prosecutions. Officers are specifically trained to ask alleged victims about choking, breathing difficulty, neck redness, and voice changes.

Second-Degree Felony — Continuous Violence

Two or more family-violence assaults within 12 months — even without prior convictions — can be charged as continuous violence against the family under Penal Code § 25.11. Punishment: 2 to 20 years prison.

Aggravated Assault Family Violence

If serious bodily injury or a deadly weapon (including hands and feet used in a deadly manner) is involved, the charge can be aggravated assault — second-degree felony (2–20 years) or first-degree if against a public servant or family member with a deadly weapon causing serious bodily injury.

The Hidden Consequence: The Federal Firearm Ban

Under 18 U.S.C. § 922(g)(9), anyone convicted of a misdemeanor crime of domestic violence is permanently prohibited from possessing a firearm or ammunition. This is federal law, not state law. It applies for life. Texas does not have a process to restore federal firearm rights.

If you own guns, hunt, work in law enforcement or the military, hold a security license, or have a CHL/LTC — this is often the most important factor in case strategy. A plea to a non-family-violence offense, or to a deferred adjudication that does not result in a conviction for § 922 purposes, can sometimes preserve firearm rights.

What Happens After Arrest

Texas family-violence cases follow a predictable pattern:

1. Magistration within 48 hours. The judge typically imposes a no-contact order as a condition of bond, prohibiting contact with the alleged victim — including through third parties.
2. Emergency Protective Order (EPO) under Code of Criminal Procedure Art. 17.292 — automatic in most family-violence cases, lasting 31 to 91 days. May exclude you from the residence and from contacting the alleged victim, children, or pets.
3. Civil protective order hearing (separate proceeding) within two weeks if the alleged victim or DA's office requests one.
4. Filing of formal charges by the prosecutor — usually within 30–90 days for misdemeanors, longer for felonies.

Do not contact the alleged victim. Not through a friend, not to "work it out," not to apologize. New charges for violating a protective order or tampering with a witness can be filed and bond can be revoked. This is the single most common way good cases get worse.

Can the Alleged Victim "Drop the Charges"?

No. Once arrest is made, only the state — not the alleged victim — decides whether to proceed. The alleged victim can sign an affidavit of non-prosecution, can refuse to cooperate, can even recant. Most North Texas prosecutors will still pursue the case based on:

• 911 audio
• Body-cam video
• Excited-utterance statements at the scene (admissible despite hearsay)
• Officer observations of injuries, demeanor, condition of the home
• Photographs of the scene and any injuries
• Medical records
• Statements of children or other witnesses

This is why "she'll just drop it" is the most dangerous assumption a family-violence defendant can make.

Defenses

Self-Defense

Texas Penal Code § 9.31 permits the use of force to protect oneself when reasonably believed necessary. In family-violence cases where both parties claimed the other started it, the question often turns on injuries, demeanor, prior incidents, and which party was the "primary aggressor."

Defense of Property or Third Person

Force used to defend another person or to terminate criminal interference with property may be justified under §§ 9.32–9.33.

Lack of Bodily Injury or Intent

Accidental contact is not assault. The state must prove the act was intentional, knowing, or reckless. Where there is no injury and the contact is disputed, the case often turns on credibility.

False Allegations

Family-violence allegations sometimes arise from divorce, custody, or immigration disputes. Investigation of phone records, location data, prior CPS contacts, and the alleged victim's statements to third parties can be decisive.

Constitutional Issues

Warrantless entries into the home, custodial interrogation without Miranda, and unlawful seizure of physical evidence can all be litigated through motions to suppress.

Diversion and Reduction Options

Family-violence cases are harder to divert than most misdemeanors, but options exist:

• Pretrial diversion programs in some counties — usually require BIPP (Battering Intervention and Prevention Program), counseling, and no contact with the alleged victim.
• Reduction to a non-family-violence assault (Class A or Class C) — preserves firearm rights and avoids the family-violence finding on the record.
• Deferred adjudication — available, but a deferred for family violence still triggers the § 922(g)(9) firearm ban under federal law and is not eligible for non-disclosure in Texas if a family-violence finding is entered.

What the Record Looks Like After

A conviction for assault family violence cannot be sealed. The family-violence finding stays on your record forever. It blocks future expunction. It bars firearm ownership for life. It will show up on background checks for employers, landlords, professional boards, and immigration officials.

This is why the goal in family-violence defense is almost always to avoid the finding — through dismissal, acquittal, or plea to a non-family-violence offense.

What to Do Right Now

1. No contact with the alleged victim. None. None through friends. None on social media. None at all.
2. Don't talk to police without counsel.
3. Find a place to stay if you've been excluded from the home under an EPO.
4. Preserve evidence — photos of the scene, your injuries, texts, emails, third-party witnesses, prior incidents.
5. Hire a board-certified criminal defense attorney immediately. Pre-filing intervention with the DA's office is the single highest-leverage moment in a family-violence case.