3 Things To Consider After a Family Violence Arrest

Family violence arrests and the criminal charges arising from those arrests can happen to anyone. If we're being honest, we've all been in an argument that got heated (did the neighbors hear us and call the police?) or had a partner who might use a call to the police gain an advantage in an argument. Getting past the embarrassment and shock of a family violence arrest is important, because there are some very important things to consider. In this article, I walk you through three important things to consider when you or someone you care about has been arrested for a family violence allegation in Texas.

1. The Victim Can't Just "Drop" the Charge(s)

While a civil case, like a lawsuit arising from a car accident, is one person versus the other, a criminal case is "the State of Texas vs. [the Accused Person]." That means the alleged victim is not a party to the case and therefore is not in control over whether or how that case is prosecuted. Once the police are involved, the alleged victim's input about whether to prosecute and how a case should be resolved is important but not controlling.

Affidavit of Nonprosecution

If the alleged victim does not want the accused person prosecuted, they can and should tell the police that clearly. They can do that when the uniformed officers come to the scene immediately after the incident and they can do that again if/when the investigating officer or detective follows up with them for a fuller statement about what happened. Once the police submit the case to the District Attorney's office for prosecution, a representative from the DA's office will usually reach out to the alleged victim. This contact can come from a prosecutor themselves or, more often, from a "victim advocate" working in the DA's office. Their job is to confirm the facts and get the alleged victim's feelings about how the case should be handled. If they're not wanting to prosecute, the alleged victim can and should clearly tell the police officers, the detective, and the DA's office representative that they do not wish the accused person to be prosecuted.

This wish to not prosecute can be formalized in an affidavit of nonprosecution. If the alleged victim contacts the DA's office and conveys a wish not to prosecute, they may be given a form affidavit of nonprosecution to fill out. The problem with these forms is that they only address the desire not to prosecute. Critically, they do not address the facts of what did and did not happen. If the police got the facts wrong or missed important details (self-defense, who was actually the aggressor, et cetera) a form affidavit of nonprosecution won't address these issues. A good criminal defense attorney who is experienced in handling assault family violence charges in Dallas will likely want to work with the alleged victim to draft a personalized affidavit that includes these vital details.

Let the Attorney Handle It

It is not a good idea for the accused person or someone acting on their behalf to contact the alleged victim or any other witness to try to persuade them to "drop the case" or sign an affidavit of nonprosecution. In Texas, it's a crime to tamper with a witness in a criminal case and what constitutes tampering is fact-specific and frankly pretty vague. Whether contact is tampering or not comes down to intent in a lot of instances. Any sort of threat or enticement to not prosecute will almost certainly lead to a criminal charge. Because tampering with a witness is a classic "he said/she said" allegation, it's best to not get anywhere close to it and let the accused person's attorney handle it.

2. Protective Orders and No-Contact Conditions

There are two ways an accused person can be ordered by the court to have no or limited contact with the alleged victim: (1) in a protective order, and (2) as conditions of bond.

Protective Order

The police often apply for an emergency protective order on behalf of the alleged victim as part of the process of arresting the accused person and submitting their case to the DA's office. The police can apply for a protective order with or without the consent of the alleged victim. This initial application is for an "emergency protective order" (EPO). An EPO is an "ex parte" application, meaning it's done without notice to or the presence of the accused person. This one-sided presentation is supposed to account for the possibility of an emergency situation where the alleged victim is in danger and there isn't sufficient time to notice the accused person and have a full hearing with them attending. An emergency protective order is limited to 60 days. The alleged victim can then apply for it to be extended. The full-blown protective order hearing is not "ex parte," meaning the accused person must receive notice and an opportunity to appear and participate in the hearing.

Conditions of Bond

The magistrate judge who sets the accused person's bond can (and often does) set conditions of that bond. Conditions of bond are things the defendant must do or not do in order to stay on bond. If they violate a condition of bond, the judge can hold the bond insufficient and issue an arrest warrant. Conditions of bond are imposed by the judge without any meaningful input from the defendant.

Types of No-Contact Orders

Whether it's imposed by an EPO or as a condition of bond in the criminal case, no-contact (sometimes also called "stay away") orders can take several forms. The most restrictive is no direct or indirect contact with a provision to stay away from the protected person's home, employment, and/or school. With this most restrictive order in place, the accused person cannot communicate with (call, text, social media, in-person visit) the accused person at all. They also cannot have someone else contact the accused person on their behalf.

A less restrictive order is "no threatening or abusive contact." With this restriction in place, the accused person can return home and/or have contact with the alleged victim as long as it's not threatening or abusive (no allegations of threats, violence, etc).

3. Contact An Experienced Family Violence Attorney Immediately

It's extremely important to find and work with a skilled criminal defense attorney who has experience handling family violence allegations where the case is located. A knowledgeable attorney can guide you through all of the above and give you detailed advice about what to do and not to do. Just as importantly, however, an attorney who frequently handles these cases where the charge is located will know how the police and DA's office commonly operate and what specific actions can be done to try to get a case rejected, dismissed, or at least mitigate the most severe consequences.

For example, in Dallas County, a criminal attorney can interview the alleged victim, draft a detailed affidavit of nonprosecution, and reach out to the DA's office early in the process to argue for the case to be rejected or dismissed. Moreover, the attorney can work with the alleged victim to help them understand how to best communicate with the police or victim advocate so they don't unintentionally hurt the accused person by saying the wrong thing. While a victim advocate should be neutral and fair, often I hear of them pressuring or even threatening alleged victims (for instance with charges of perjury or filing a false police report). A good attorney can help the alleged victim stand up for themselves and not get run over by an overzealous "advocate."