What is family violence? Key information that you should know

what is family violence

Have you been arrested for a family violence offense? Yet you aren’t sure what that means? What is family violence, exactly? Many of us have heard of domestic violence and family violence, but the term “family violence” in Texas has been given a specific definition. If you or a loved one has been arrested for a family violence charge, you should contact an attorney. 

The following article provides some information that will help you understand what “family violence” is in Texas and how to best protect yourself from the detriments of getting tagged with a finding of “family violence”.

What is family violence in Texas?

Family violence is when one family or household member commits any act of violence on another family or household member. Tex. Fam. Code 71.004. Family violence also includes threats to commit violence against a family member and not just the act of violence itself. In Texas, a violent act is anything causing physical harm or bodily injury including assault, sexual assault and threats that reasonably place the member in fear of imminent physical harm, bodily injury, assault, or sexual assault.

What do I do if I am arrested for family violence?

These are very serious charges, and you need to consult with a local board certified attorney right away. A family violence charge can radically change your life, preventing you from finding housing and jobs, as well as preventing you from possessing firearms and ammunition. Family violence charges can also affect your child custody rights and can be used to enhance any future accusations of family violence to a felony offense (and the jury being told you’ve committed family violence before). It is important to avoid all those consequences if possible. Hiring a local board certified attorney is imperative to fighting a family violence conviction. An experienced attorney can help you fight the charges and make sure your rights are protected.

If the police show up to a family violence situation, they may arrest you. Do not panic, an arrest is not the same as being convicted. If possible, speak to an attorney before you speak to officers or the prosecuting attorney. You have a right to remain silent. Understanding how the system works and what you can do to protect yourself from a family violence charge can be a game changer. Most importantly, do not let anyone talk you into taking a plea for a family violence case—without asking Soyars & Morgan Law why that is often not the best solution for you.

What is the legal definition of “family violence”?

    • The legal definition of “family violence” in Texas is: 

      • any act committed by one family or household member against another family/household member that is:
        • intended to cause:
          • physical harm;
          • bodily injury, which is defined as physical pain, illness, or damage to your physical condition;
          • assault; or
          • sexual assault; or
        • threat that reasonably places the family or household member in fear of:
          • physical harm;
          • bodily injury, which is defined as physical pain, illness, or damage to your physical condition;
          • assault; or
          • sexual assault.
        • Tex. Penal Code § 1.07(a)(8); Tex. Fam. Code § 71.004(1)

       

      • any of the following acts committed by a family or household member against a child of the family or household member:
        • physical injury that results in substantial harm to the child (or that has a real risk of resulting in substantial harm)
        • sexual conduct harmful to a child’s mental, emotional, or physical welfare (including acts that come under the offense of continuous sexual abuse of young childindecency with a childsexual assault, or aggravated sexual assault)
        • forcing or encouraging the child to engage in sexual conducttrafficking (under sections (a)(7) or (8) of the law), solicitation of prostitution, or compelling prostitution (under section (a)(2) of the law);
        • causing, permitting, encouraging, engaging in, or allowing pornographic or obscene photographing, filming, or depicting of the child;
        • use of a controlled substance (drug) that the use results in physical, mental, or emotional injury to a child;
        • causing, encouraging, or expressly (specifically) permitting a child to use a controlled substance (drug);
        • causing, permitting, encouraging, engaging in, or allowing sexual performance by a child;
        • forcing or coercing a child to enter into a marriage, or
        • Tex. Fam. Code §§ 71.004(2); 261.001(1)(C), (1)(E), (1)(G)-(K)

What are the consequences for a family violence charge?

 

A family violence charge can have serious repercussions, so it is important that you talk to an attorney before you plead guilty or no contest to these charges. There is not a specific criminal offense for family violence in Texas. Instead, Texas relies on already existing violent criminal offenses that can trigger a “finding of family violence” based on the relationship of the defendant to the alleged victim. This “finding of family violence” is then used to trigger additional consequences to the person accused of committing the violent crime. It is the nature of the relationship between the alleged victim and defendant that makes it family violence.

If a defendant takes a plea or is convicted of a family violence offense, the court will make a finding of family violence against the defendant. Consequences of a family violence crime and the finding of family violence that are not listed in the Texas Penal Code include:

  • Ineligible for expungement (erasing the criminal offense off your record),
  • Limit housing options (apartments often reject family violence applicants),
  • May result in loss of a job or prevent you from securing a job,
  • Prevent you from obtaining or renewing certain professional license,
  • Affect your child custody rights and result in defendant receiving supervised visitation or limited access to his/her children
  • Expose defendant to future felony charges if defendant is ever accused of family violence again in the future.

 Under the Texas Penal Code, the penalties for family violence charges depend on a number of factors including the injury sustained by the victim and the prior criminal history of the defendant. A family violence conviction can range in penalties from a class A misdemeanor to a 1st degree felony.

  • Class A misdemeanor domestic threat conviction can result in up to a year in county jail and a fine of up to $4,000.
  • 3rd Degree felony domestic assault can include incarceration for 2 to 10 years and a fine of up to $10,000.
  • 2nd Degree felony domestic assault can include incarceration for 2 to 20 years and a fine of up to $10,000.
  • 1st Degree felony aggravated domestic assault can include incarceration for 5 to 99 years and a fine of up to $10,000.
    Tex. Penal Code § 22.01

What is the punishment for first time assault family violence?

First time assault family violence charge is usually a class A misdemeanor. Conviction can result in up to a year in county jail and a fine of up to $4,000. First time offenders should take any accusation of family violence seriously even if they are not likely to see jail time for a first offense. The collateral consequences of a finding of family violence (even on a misdemeanor) are so significant that it will affect the defendant for the rest of his or her life.

There are other factors that can increase the penalties for first time assault family violence cases. If the assault involved impeding the normal breathing or circulation of the blood by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth, the family violence assault will be a 3rd degree felony.

If an individual has been convicted of an earlier family violence charge, the family violence assault charge becomes a 3rd degree felony.

Even though most first-time assault family violence offenses start out as misdemeanors, it is still important to seek and hire a local board certified attorney who has experience defending family violence cases. Avoiding any finding of family violence is really significant, because a subsequent assault family violence charge is often filed as a 3rd degree felony or higher, even when the act of violence or injury was relatively minor (i.e. grabbing or pushing the alleged victim, etc.). A felony conviction or felony criminal record has serious consequences. You want an experienced attorney to help you get the best outcome.

Tex. Penal Code § 22.01

A Family Violence Attorney that can help protect your reputation and secure your future. 

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How serious is my family violence case?

 Texas law provides for findings of family violence to be made on several different types of criminal offenses. Here is a list of the most common:

Assault occurs when a person intentionally, knowingly, or recklessly:

  1. Causes bodily injury to another person
  2. Threatens another person with imminent bodily injury, or
  3. Causes physical contact with another person knowing (or reasonably should have known) that person would find it provocative or offensive

    Assault family violence cases start out at the misdemeanor level. However, they can be enhanced to felonies under the circumstances addressed below. Many defendants might think, it’s a misdemeanor, it’s not that serious. But the reality is the finding of family violence that goes along with the misdemeanor is worse than the misdemeanor itself. For those reasons, we will often recommend fighting your misdemeanor assault family violence charge as hard as you possibly can. Once you are tagged with a finding of family violence

Aggravated assault occurs when a person commits assault, and:

  1. Causes serious bodily injury to another person, including a spouse; or
  2. Uses or exhibits a deadly weapon during the commission of the assault.

Aggravated assaults will generally be 1st or 2nd degree offenses. Aggravated assaults with findings of deadly weapons create additional complications for the defendant, because they prevent the Judge from granting the defendant probation and trigger stricter parole rules.

Assault Strangulation. Even first-time offenders can face felony level charges, if there is a familial relationship between the victim and defendant, including a current or ex dating partner, and the defendant has attempted to restrict the airway of the victim in any way. Restricting the airway includes impeding the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth. The act of restricting a family member’s airway increases the penalties from a misdemeanor to a 3rd degree felony.

Continuous Family Violence. If a defendant is accused of having committed two or more assault family violence offenses within a 12-month period, the State of Texas can enhance the charge to a 3rd Degree Felony offense for continuous family violence. We often see the continuous family violence fact pattern when couples who are in a relationship are in the process of breaking up or deciding to stay together. If you have been charged with continuous family violence, seek legal advice right away, to avoid the circumstances from escalating further.

Whether you are facing just a misdemeanor assault family violence case or a felony assault family violence case, it is important to make sure you have an attorney that will defend your rights and fight vigorously to make sure you get the best outcome possible. Even if you did what you are accused of, there are many times the defendant can diminish or completely avoid a conviction or criminal record by obtaining experienced legal representation.
Tex. Penal Code § 22.01

Why am I charged with family violence-married, if I am not married?

Defendant’s often ask why am I charged with family violence-married, when they are not married to or related to the alleged victim in the case. In Texas, Assault Bodily Injury—Married/Cohab often is just the general term used by officers to refer to misdemeanor assault family violence cases. However, the category of individuals that qualify as victims of family violence has been enlarged to include not just relatives and spouses, but also household members and persons the defendant has dated or is dating. Here is a list of important terms that Texas uses to place an alleged victim into the category of individuals that can be a victim of family violence.

The special relationship between the alleged victim and defendant is what drives the assault or violent act to be classified as a family violence offense. Important terms include the following provisions under Texas law:

 

FAMILY VIOLENCE. Under Tex. Fam. Code § Section 71.0021 “family violence” means:

    • (1) an act by a member of a family or household against another member of the family or household that is intended to result in:
    • physical harm, bodily injury,
    • assault,
    • or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm,
    • bodily injury,
    • assault,
    • or sexual assault,
    • Note: does not include defensive measures to protect oneself;
    • (2) abuse, as that term is defined by Sections 261.001(1)(C), (E), (G), (H), (I), (J), (K), and (M), by a member of a family or household toward a child of the family or household; or
    • Tex. Fam. Code § Sec. 71.004.
    • (3) dating violence, as that term is defined by Section 71.0021.
      FAMILY.
      “Family” includes individuals related by consanguinity or affinity, as determined under Sections 573.022 and 573.024, Government Code,
    • individuals who are former spouses of each other,
    • individuals who are the parents of the same child, without regard to marriage, and a foster child and foster parent, without regard to whether those individuals reside together.
    • Tex. Fam. Code § Sec. 71.003

      Household Member Violence

    • HOUSEHOLD. “Household” means a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other.
    • MEMBER OF A HOUSEHOLD. “Member of a household” includes a person who previously lived in a household.
    • Note: this could be a roommate.
    • Tex. Fam. Code § Sec. 71.005.

What is “dating violence” in Texas?

Dating violence means an act, other than a defensive measure to protect oneself, by an actor that:

  •  is committed against a victim or applicant for a protective order:
    • with whom the actor has or has had a dating relationship
    • because of the victim’s or applicant’s marriage to or dating relationship with an individual with whom the actor is or has been in a dating relationship or marriage; and
  • is intended to result in 
    • physical harm, 
    • bodily injury, 
    • assault, 
    • or sexual assault 
    • or that is a threat that reasonably places the victim or applicant in fear of imminent physical harm, bodily injury, assault, or sexual assault.
  • “Dating relationship” means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature.  The existence of such a relationship shall be determined based on consideration of:
    • the length of the relationship;
    • the nature of the relationship;  and
    • the frequency and type of interaction between the persons involved in the relationship.
  • A casual acquaintanceship or ordinary fraternization in a business or social context does not constitute a “dating relationship”.
  • Tex. Fam. Code § Sec. 71.0021

If you have been accused of family violence, you should contact an attorney today to better understand what is a family violence charge and your options.