Criminal Law · 2024-10-05 · 10 min read · Anthony Robles
Assault Family Violence in Texas: What the Charge Really Means
TL;DR (Quick Summary)
Assault Family Violence (AFV) is assault under Texas Penal Code §22.01 committed against a family member, household member, or dating partner. First offense with bodily injury is a Class A misdemeanor (up to 1 year, $4,000). It becomes a 3rd-degree felony with a prior FV conviction or if choking is alleged. The "family violence finding" itself is the real punishment: lifetime federal firearm ban, no sealing/expunction of convictions, custody consequences, and immigration exposure. Only the DA — not the alleged victim — can drop the charge.
Charge Levels and Automatic Enhancements
- Class C misdemeanor: offensive contact or threat, no injury — fine only, but the FV finding still hurts.
- Class A misdemeanor: assault causing bodily injury (pain is enough — no bruise required) against a family/household/dating member.
- 3rd-degree felony: prior family-violence conviction, OR impeding breath/circulation (choking) — 2–10 years TDCJ.
- 2nd-degree felony: choking + prior FV conviction, or aggravated assault (serious bodily injury/deadly weapon) — 2–20 years.
- Continuous violence against the family (§25.11): two or more assaults within 12 months — 3rd-degree felony even without convictions on the earlier incidents.
Why Victims Can't Drop It — and How These Cases Are Defended
Ector and Midland County DAs prosecute AFV cases even when the complaining witness recants — using the 911 call, body-cam footage, photos, and excited-utterance testimony. An affidavit of non-prosecution helps but does not control the outcome. Meanwhile, an emergency protective order (EPO) may bar you from your own home for 31–91 days.
Defenses that actually work: self-defense (§9.31), mutual combat context, lack of intent, inconsistent injuries vs. the story, and motive to fabricate in a pending divorce or custody fight. Never plead guilty to "get it over with" — even deferred adjudication on an FV charge can never be sealed and triggers the federal gun ban. Related reading: Is domestic violence a felony? Case Evaluation: (432) 366-6000.
Frequently Asked Questions
Can my spouse drop the assault charge against me in Texas?
No. Once police file the case, only the district attorney decides. Your spouse can sign an affidavit of non-prosecution, which helps, but prosecutors routinely proceed without the victim's cooperation.
What is an "affirmative finding of family violence"?
A finding entered in the judgment that the offense involved family violence. It triggers the lifetime federal firearm ban, blocks expunction and nondisclosure, enhances any future FV charge to a felony, and affects custody under Family Code §153.004.
Will an AFV charge affect my divorce or custody case?
Significantly. A family-violence finding removes the presumption of joint managing conservatorship, can mean supervised visitation, and supports protective orders and a disproportionate property split.
Can I get an assault family violence charge expunged?
Only if it is dismissed or you are acquitted. A conviction — or even deferred adjudication — with an FV finding can never be expunged or sealed in Texas.