A family violence arrest in Houston usually starts with a 911 call after an argument, and by the next morning the person arrested can be barred from their own house and cut off from their kids, all before anyone has been convicted of anything. The charge itself is usually assault causing bodily injury, a Class A misdemeanor with up to a year in jail. What makes it a family violence case is who the other person is: a relative, someone you live with or used to live with, a spouse or ex, your child’s other parent, or a current or former dating partner (Family Code §§ 71.0021, 71.003, 71.005, 71.006). That label follows the case. A deferred adjudication still counts as a prior for the next one, and if the case ends in a conviction or deferred, it can never be sealed. The complaining witness doesn’t decide whether it goes forward. The District Attorney does, and that’s who we work on.
Call (713) 664-4000. If there’s an emergency protective order or a bond condition keeping you away from someone, follow it exactly, even if they call you first. Answering can be a new charge.
Family violence charges are one of the most common cases at our Houston criminal defense firm, and most of them are won or lost in the first few weeks.
The first few days after a family violence arrest
After an on-scene family violence arrest, if there’s probable cause to believe the violence will continue, the jail holds you for four hours after you post bond, and a magistrate can extend that in writing by up to 48 more hours (Code of Criminal Procedure Art. 17.291). At your first appearance, the magistrate can sign an order for emergency protection. It’s mandatory if the arrest involved serious bodily injury or a deadly weapon (Art. 17.292(b)). The order can keep you away from your home and your kids’ school, bar you from having a firearm, bar any contact with the other person except through your lawyer, and stop you from tracking their phone or car. It lasts 61 to 91 days, or 91 to 121 days in a deadly weapon case, and it overrides an existing custody order while it’s in effect (Art. 17.292(f), (j)). Bond conditions can add the same restrictions and GPS monitoring on top of that (Art. 17.49).
The other person can’t give you permission to ignore any of it. The order says so in capital letters. If the order or your bond covers it, going back to the house because they asked you to, or texting back, is violating a protective order or bond condition. That’s a Class A misdemeanor, or a felony if the violation involved an assault or you had a deadly weapon on you (Penal Code § 25.07). We can ask the court to modify an emergency order after notice and a hearing. When you need to get back into your home or see your children, that hearing is usually the first thing we set. See our page on violating a protective order.
When it becomes a felony
| Situation | Charge | Range |
|---|---|---|
| Bodily injury, including pain, to a family or household member or dating partner | Class A misdemeanor (§ 22.01(a)(1)) | Up to 1 year in jail and a $4,000 fine |
| Choking or blocking the nose or mouth | Third-degree felony (§ 22.01(b)(2)(B)) | 2 to 10 years |
| Bodily injury to a family or household member or dating partner, with a prior conviction or deferred for assault or another listed violent offense against one | Third-degree felony (§ 22.01(b)(2)(A), (f)) | 2 to 10 years |
| Two or more bodily-injury assaults on family members, household members or dating partners within 12 months (no prior conviction needed) | Continuous violence against the family, third-degree felony (§ 25.11) | 2 to 10 years |
| Choking, with a prior conviction or deferred for assault or another listed violent offense against a family or household member or dating partner | Second-degree felony (§ 22.01(b-3)) | 2 to 20 years |
| Serious bodily injury, or a deadly weapon used or exhibited | Aggravated assault, second-degree felony, or first degree if a deadly weapon causes serious bodily injury to a family member, household member or dating partner (§ 22.02) | 2 to 20 years, or 5 to 99 years or life |
The choking charge is how most first-time family violence felonies get filed, and it doesn’t take a mark. The State has to prove you actually impeded normal breathing or blood circulation, and that’s where the body camera video and the medical records matter. A hand on someone’s shoulder or collar during a struggle, described later as a hand on the neck, isn’t that. For more on the grading, see whether assault on a family member is a felony.
What a family violence case costs, even without jail
A family violence conviction or deferred can’t be sealed with an order of nondisclosure, and it blocks sealing anything else later (Gov’t Code § 411.074(b)). A dismissal is different, and we can often get the arrest expunged. A Class A assault conviction against a family or household member bars you from having a firearm under Texas law for five years after you finish jail or probation (Penal Code § 46.04(b)). Federal law bans firearm possession after a misdemeanor domestic violence conviction against a spouse or ex, a co-parent, your child or ward, or someone you lived with as a spouse or parent (18 U.S.C. § 922(g)(9)). For a dating partner, a conviction since June 2022 carries a federal ban that can lift after five years. For a noncitizen, it can be a deportable offense, and a deferred counts as a conviction for immigration. And it can decide a custody case. A family court judge can’t name joint managing conservators when there’s credible evidence of a history or pattern of physical abuse against the other parent or a spouse (Family Code § 153.004(b)).
That’s also why a separate protective order hearing in family court needs a criminal lawyer’s attention. Anything you say at that hearing is under oath, and the prosecutor can use it in the criminal case. A family court protective order usually lasts up to two years. But if you’re charged with a family violence offense, it can run until two years after the criminal case ends, and a finding of felony family violence or serious bodily injury can extend it further (Family Code § 85.025). We coordinate with your family lawyer so the protective order case and the custody case don’t hand the State its evidence.
How we defend family violence cases
Self-defense. In a lot of these cases both people were hurt and only one was arrested. Officers arrive after the fact and see one injury. Then they make a call in a few minutes. Texas law allows force you reasonably believe is immediately necessary to protect yourself (§ 9.31), and once there’s some evidence of self-defense the State has to disprove it beyond a reasonable doubt. In felony cases we can submit that evidence to the grand jury before it decides whether to indict.
The motive to lie. Accusations spike during divorces and custody fights, because a family violence case can decide who gets the house and the kids. Text messages, social media posts, the timing of the 911 call against the timing of a divorce filing, and what the complaining witness told other people all matter. We gather them before the State does.
The video and the 911 call. Body camera footage and the 911 recording are the core of most family violence cases. When the complaining witness won’t testify, the State tries to use those recordings instead, but statements to police describing what already happened, once any emergency is over, are testimonial, and the Constitution generally requires the State to bring that witness to court for cross-examination. A 911 call made to get help is treated differently, and so is a case where the State can show the defense kept the witness away. We make the State meet that rule.
When the complaining witness wants to drop it. An affidavit of non-prosecution doesn’t bind the District Attorney, but it’s part of the picture, and so is the complaining witness’s own statement about what happened. We can’t advise the complaining witness, and offering them money or any other benefit to get a family violence charge dropped is its own felony (§ 36.05), unless it’s restitution worked out with the prosecutor. Handled the right way, a complaining witness who doesn’t want the case to go forward is often what gets it dismissed. See how an assault case can get dismissed.
Results
A Harris County client charged with felony assault on a family member, accused of grabbing the complaining witness by the neck to choke them and then throwing them to the ground, had the case dismissed. See more of our case results. Prior results do not guarantee a similar outcome.
Charged with assault on a family member in Houston? Call Blass Law
Jay Blass Cohen has defended assault cases in Houston since 2009 and has never worked for the prosecution. We’ll get the 911 call and the body camera video and tell you what the State can actually prove. And we’ll move fast to get you back into your home. For assault charges that don’t involve family, see our Houston assault page.
Call (713) 664-4000. If you were arrested this week, call now, before the emergency order and the bond conditions settle into place.
Reviewed by Jay Blass Cohen, founder of Blass Law PLLC, ACS-CHAL Forensic Lawyer-Scientist, certified Drug Recognition Expert, and SFST instructor, serving Houston since 2009. This article is general information, not legal advice for your situation. Prior results do not guarantee a similar outcome.