IN TEXAS, FAMILY VIOLENCE IS DOMESTIC VIOLENCE, RIGHT?
Not exactly. Texas law defines a family member as a person that’s within three degrees of consanguinity (blood) or affinity (marriage). Your wife or husband, ex-wife or ex-husband, parents, children, stepparents or step children, grandparents or grandchildren, your siblings, and several other categories count as “family” under the law. Family violence also includes people who you cohabitate with, like a boyfriend or girlfriend, even a roommate!
WHAT IS FAMILY VIOLENCE?
The Texas Family Code defines Family Violence as an act by a member of a family or household against another member that is intended to result in physical harm, bodily injury, assault, or a threat that reasonably places the member in fear of imminent physical harm. Wow, that’s a mouthful! Basically, it’s physical contact with a family member that is unwanted or not in self-defense.
Although Texas law generally treats family violence as a Class A misdemeanor, the charge may be enhanced to a third-degree felony if you have a previous family violence conviction, have been accused twice of the same offense in the past 12 months, or if the present offense involves choking or suffocation.
WHAT DOES IT TAKE TO BE ACCUSED OF FAMILY VIOLENCE?
A police report.
The worst part about these cases is the ease with which you can end up with an arrest warrant. If the complaining witness (spouse, for example) lies or exaggerates what happened, the police report will include that exaggeration and not your side of the story. In many cases, that’s the only evidence the Judge has in front of her to decide whether to issue a warrant.
I’m not downplaying legitimate family violence accusations. What I am doing, though, is calling out the people who use this charge as a tool to get a leg up in custody battles or divorces. Stop. It.
WHAT’S THE PUNISHMENT FOR A FAMILY VIOLENCE CONVICTION?
If you are convicted of a felony assault on a family member, the consequences are severe. With a third-degree felony conviction, you could go to prison for 2 to 10 years and be required to pay a fine of up to $10,000. If you are charged with a misdemeanor, you’re facing up to a year in county jail and a fine up to $4,000.
WILL I BE SUBJECT TO A PROTECTIVE ORDER?
Most likely, yes. A complaining witness can ask for an Emergency Protective Order (EPO) or a police officer can ask for one on the witness’ behalf. The Judge almost certainly will grant an EPO in family violence cases.
The EPO will be valid for 30-90 days, depending on what the Judge decides. After that, the complaining witness will have the opportunity to apply for a “permanent” protective order (1-2 years) but you will be entitled to a hearing where you can present evidence as to why a protective order is not necessary.
The biggest mistake most clients make is falling for the “baby come back” game that many complaining witnesses play. Be mindful that a court order is a court order. An EPO is still valid unless a court gets rid of it or it expires. It doesn’t really matter what your ex says – even if she wants you back – if you’re not allowed on the property or near her, YOU MUST FOLLOW THE ORDER. Most judges will thoroughly explain the do’s and the don’ts of an EPO. If you’re caught in violation of a protective order, you’ll face another criminal charge, where guilt is much easier to prove.
WHAT’S A FAMILY VIOLENCE FINDING AND WHY DOES IT MATTER?
Before pleading guilty to a crime of family violence, you need to understand how that finding will affect your life in the community.
If you're a hunter or collect firearms, it affects your ability to have those guns for a period, if ever. Texas prohibits people convicted of some family violence misdemeanors from possessing firearms for 5 years following their release from confinement or community supervision. This gun possession prohibition generally applies to people convicted of Class A misdemeanor assault for “intentionally, knowingly, or recklessly causing bodily injury” to a member of their family or household. Federal firearms laws can be even stricter.
If you're a doctor or a nurse, kiss that license goodbye most likely; you can lose certain forms of professional licenses.
If you are convicted, your criminal record will show that conviction for the rest of your life. Such conviction is considered a violent offense in your background check.
Know your options, know the facts and consult an experienced attorney.