Is Assault on a Family Member a Felony in Texas?

Usually not. A first assault on a family member, household member or dating partner that causes bodily injury is a Class A misdemeanor under Penal Code § 22.01(b), punishable by up to a year in county jail and a $4,000 fine. It becomes a felony when the State alleges choking, a victim you knew was pregnant, a prior family violence case, two or more assaults within a year, or serious bodily injury or a deadly weapon. Every one of those except the prior can make it a felony on your first arrest.

If you or someone in your family was arrested in Houston or Harris County, call (713) 664-4000. A family violence arrest usually comes with a protective order that keeps you out of your own home, and we start working on that and the bond conditions right away.

Misdemeanor or felony: how the charge is graded

What the State alleges	Level	Punishment range
Bodily injury to a family member, household member or dating partner	Class A misdemeanor	Up to 1 year in county jail, up to $4,000
A threat of imminent injury, or offensive contact, with no injury	Class C misdemeanor	Fine up to $500
Impeding breathing or blood flow by pressure on the throat or neck, or by blocking the nose or mouth	Third-degree felony	2 to 10 years, up to $10,000
Bodily injury to someone you knew was pregnant	Third-degree felony	2 to 10 years, up to $10,000
Bodily injury with a prior family violence conviction or deferred adjudication	Third-degree felony	2 to 10 years, up to $10,000
Choking with a prior family violence conviction or deferred adjudication	Second-degree felony	2 to 20 years, up to $10,000
Two or more bodily injury assaults within 12 months (continuous violence against the family)	Third-degree felony	2 to 10 years, up to $10,000
Serious bodily injury, or using or exhibiting a deadly weapon (aggravated assault)	Second-degree felony	2 to 20 years, up to $10,000
Using a deadly weapon and causing serious bodily injury to a family or household member or dating partner	First-degree felony	5 to 99 years or life, up to $10,000

Sources: Penal Code §§ 22.01(b)(2), (b)(8), (b-3) and (c), 22.02, 25.11, 12.21, 12.23, 12.32, 12.33 and 12.34.

The prior that bumps a case to a felony doesn’t have to be a conviction. Under § 22.01(f)(1), a family violence assault, or another listed offense against a family member, that ended in deferred adjudication counts, even though you completed it and the case was dismissed. People who took deferred years ago and thought it was behind them find that out at their next arrest.

Who counts as family

The assault statute borrows three definitions from the Family Code. “Family” under § 71.003 means relatives by blood or marriage, former spouses, parents of the same child whether or not they were ever married, and foster parents and children, whether or not anyone lives together. “Household” under § 71.005 means people living in the same dwelling, related or not, so a roommate counts. And a “dating relationship” under § 71.0021(b) is a current or past continuing romantic or intimate relationship. Courts look at how long it lasted and what kind of relationship it was. They also look at how often the two of you interacted.

That last one gets argued. A few dates is not automatically a dating relationship, and whether the State can prove one decides whether the case carries a family violence finding at all.

Choking cases

The choking provision, § 22.01(b)(2)(B), makes a family violence assault a felony on a first arrest, with no prior required. The State has to prove you intentionally, knowingly or recklessly impeded the person’s normal breathing or circulation by pressure on the throat or neck or by blocking the nose or mouth. There doesn’t have to be a mark, and there often isn’t one, so these cases turn on what the complainant told the officer and what the officer wrote down. The difference between a hand on the shoulder and a hand on the neck can be one line in a report, so we get the body-camera video and the photos and compare them to the report line by line.

What comes with the arrest

At the first appearance, the magistrate can issue an order for emergency protection under Code of Criminal Procedure Art. 17.292, and must issue one if the arrest involves serious bodily injury or a deadly weapon. The order can bar you from going home, from contacting the complainant, and from possessing a firearm. It lasts 61 to 91 days, or 91 to 121 days if a weapon was involved, and it can be modified after a hearing if it’s unworkable. If the order bars contact, as most do, contacting the protected person while it’s in effect is a new charge under Penal Code § 25.07, even if they contacted you first. Our page on violating a protective order explains how that goes.

What a conviction or deferred costs you

A family violence case follows you in ways most misdemeanors don’t.

It can’t be sealed. Government Code § 411.074(b) bars an order of nondisclosure for any offense involving family violence, including one that ended in deferred adjudication.

It costs you your guns. A Class A assault conviction against a family or household member makes it a state crime to possess a firearm for five years after you finish your sentence or probation, under Penal Code § 46.04(b). If the victim was a current or former spouse, a co-parent, a cohabiting partner or your child, federal law bans it permanently under 18 U.S.C. § 922(g)(9), and a single conviction involving a dating partner can clear after five years.

Probation comes with extra conditions. Art. 42A.504 requires a $100 payment to a family violence center and lets the judge order a battering intervention program.

And for anyone who isn’t a U.S. citizen, a conviction for a crime of domestic violence can make you deportable under 8 U.S.C. § 1227(a)(2)(E)(i), and immigration law treats a Texas deferred adjudication as a conviction. Talk to us before you plead to anything.

How these cases get won

The complaining witness doesn’t decide whether the case goes forward. The prosecutor does, and a spouse or partner who tells the DA they don’t want to proceed hasn’t ended anything. What the State can prove without them is the real question: whether the 911 call and the body-camera statements come in, whether anyone else saw what happened, whether there’s an injury anyone can testify to, and whether the relationship fits the Family Code. Our page on the elements of assault in Texas covers the rules on those statements.

Self-defense is built into the definition. Family Code § 71.004 excludes “defensive measures to protect oneself” from family violence, and Penal Code § 9.31 applies here like anywhere else. In a lot of these cases both people were hurt and only one was arrested.

Timing matters too. A family violence accusation that shows up in the middle of a divorce or custody fight gets a hard look from us, and from a jury.

Charged with assault on a family member in Houston? Call Blass Law

Jay Blass Cohen has defended family violence cases in Houston since 2009 and has only ever worked on the defense side. He’s also a Governor-appointed member of the Texas Indigent Defense Commission. Our Houston family violence assault lawyers will tell you on the first call whether the State can make the felony stick, and what we can do about the protective order that’s keeping you out of your house.

Call (713) 664-4000. Don’t call the complainant, and don’t talk to the detective, until you’ve talked to us.