An arrest for domestic violence, legally termed “family violence” in Texas, can be a distressing and overwhelming experience. The consequences of such an arrest may include criminal charges, protective orders, and long-term impacts on employment, housing, and personal relationships. Understanding the immediate steps to take, the legal framework, and your rights is crucial for navigating this complex situation effectively. This blog outlines the key actions to consider after an arrest, relevant Texas laws, recent legislative changes, and important nuances to be aware of.
Immediate Steps to Take After an Arrest
1. Remain Calm and Exercise Your Right to Remain Silent
After an arrest, emotions may run high, but staying calm is essential. Under Texas law, you have the right to remain silent to avoid self-incrimination, as guaranteed by the Fifth Amendment of the U.S. Constitution and Article 1, Section 10 of the Texas Constitution. Politely decline to answer questions from law enforcement without an attorney present, as statements made during this time can be used against you in court. Simply state, “I wish to remain silent and would like to speak with my attorney.”
2. Request Legal Representation
Contact a qualified criminal defense attorney with experience in Texas family violence cases as soon as possible. An attorney can:
- Advise you on your rights and legal options.
- Review the evidence and police reports to identify weaknesses in the prosecution’s case.
- Negotiate with prosecutors for reduced charges or alternative sentencing.
- Represent you in court and build a defense strategy tailored to your situation.
Texas law allows for warrantless arrests in family violence cases if officers have probable cause (Tex. Code Crim. Proc. Art. 14.03(a)(4)). An experienced attorney can assess whether the arrest was lawful and challenge any procedural errors.
3. Avoid Contact with the Alleged Victim
After an arrest, the court may issue an Emergency Protective Order (EPO) or a magistrate may set bond conditions prohibiting contact with the alleged victim (Tex. Code Crim. Proc. Art. 17.292). Violating these orders can result in additional charges, such as a Class A misdemeanor for violating a protective order, with penalties of up to one year in jail and a $4,000 fine (Tex. Penal Code § 25.07). Avoid all communication, including phone calls, texts, emails, or social media interactions, even if you believe the situation was a misunderstanding.
4. Gather and Preserve Evidence
Collect any evidence that may support your defense, such as:
- Text messages, emails, or voicemails that provide context for the incident.
- Names and contact information of witnesses who can corroborate your account.
- Photos or videos of the scene or injuries, if applicable.
Provide this information to your attorney, who can evaluate its relevance and admissibility. Do not attempt to gather evidence by contacting the alleged victim, as this could violate court orders.
5. Attend All Court Hearings
Failing to appear at scheduled court hearings can result in additional legal consequences, such as a warrant for your arrest or forfeiture of bail (Tex. Code Crim. Proc. Art. 22.01). Follow your attorney’s guidance and comply with all court orders, including attending required counseling or battering intervention programs if mandated as a condition of bond or probation.
6. Understand the Charges and Potential Consequences
Texas law categorizes family violence offenses under several statutes, each with distinct penalties:
- Domestic Assault (Tex. Penal Code § 22.01): A Class A misdemeanor for a first-time offense, punishable by up to one year in jail and a $4,000 fine. If the defendant has a prior conviction or the assault involves choking/strangulation, it may be elevated to a third-degree felony (2–10 years in prison, up to $10,000 fine).
- Aggravated Domestic Assault (Tex. Penal Code § 22.02): A second-degree felony if the assault causes serious bodily injury or involves a deadly weapon, punishable by 2–20 years in prison and a $10,000 fine. If a deadly weapon is used with intent to cause serious bodily injury, it may be a first-degree felony (5–99 years or life in prison).
- Continuous Violence Against the Family (Tex. Penal Code § 25.11): A third-degree felony for two or more domestic assaults within a 12-month period, regardless of whether prior incidents led to arrests or convictions, carrying 2–10 years in prison and a $10,000 fine.
- Violation of a Protective Order (Tex. Penal Code § 25.07): A Class A misdemeanor, with enhanced penalties for repeat violations or violations involving assault or stalking (third-degree felony).
A conviction may also result in long-term consequences, such as loss of firearm rights under the federal Lautenberg Amendment (18 U.S.C. § 922(g)(9)), difficulty obtaining employment or housing, and challenges in child custody cases.
Key Legal Terms and Definitions
Understanding the terminology used in Texas family violence cases is essential:
- Family Violence: Defined under Tex. Family Code § 71.004 as an act by a family or household member against another that is intended to result in physical harm, bodily injury, assault, or sexual assault, or a threat that reasonably places the victim in fear of imminent harm. It excludes reasonable discipline of a child.
- Family or Household Member: Includes spouses, former spouses, parents, children, blood relatives, relatives by marriage, foster children/parents, roommates, and individuals in a dating relationship (Tex. Family Code § 71.003, § 71.005, § 71.0021).
- Serious Bodily Injury: Injury that creates a substantial risk of death or causes serious permanent disfigurement or protracted loss/impairment of a bodily function (Tex. Penal Code § 1.07(a)(46)).
- Protective Order: A court order prohibiting contact with the alleged victim, which may include restrictions on communication, proximity to certain locations, or possession of firearms (Tex. Code Crim. Proc. Art. 17.292).
Recent Changes in Texas Law
Texas domestic violence laws have evolved to enhance victim protection and impose stricter penalties. Notable recent changes include:
- House Bill 4504 (2023): Effective January 1, 2025, this bill amends the Texas Code of Criminal Procedure to strengthen peace officers’ duties in family violence investigations, requiring them to verify allegations and protect victims (Tex. Code Crim. Proc. Art. 5.04, amended by Acts 2023, 88th Leg., Ch. 765). It also clarifies that family or household relationships do not exempt officers from their duties (Tex. Code Crim. Proc. Art. 5.03).
- Increased Focus on Strangulation: Recent case law and legislative trends have emphasized strangulation in domestic violence cases, often elevating charges to a third-degree felony due to its association with severe harm (Tex. Penal Code § 22.01(b)(2)(B)).
- Firearm Restrictions: The federal Lautenberg Amendment (1996) continues to impact Texas defendants, prohibiting those convicted of misdemeanor domestic violence from possessing firearms. Texas courts increasingly enforce these restrictions through bond conditions and protective orders.
Nuances to Consider
- State vs. Federal Law: While Texas defines family violence and sets penalties, federal laws like the Lautenberg Amendment impose additional consequences, such as firearm restrictions, which apply nationwide.
- No Mandatory Arrest Policy: Unlike some states, Texas does not require mandatory arrests for family violence calls, but officers have discretion to arrest based on probable cause (Tex. Code Crim. Proc. Art. 14.03). This can lead to arrests based on limited evidence, necessitating a strong defense.
- Victim’s Role in Dropping Charges: The alleged victim cannot drop charges, as the decision rests with the prosecutor (Tex. Code Crim. Proc. Art. 5.06). However, a victim’s recantation or refusal to testify may weaken the case, though prosecutors may proceed with other evidence (Dominguez v. State, 786 S.W.2d 749 (Tex. App.—El Paso 1990, pet. ref’d)).
- Deferred Adjudication: First-time offenders may be eligible for deferred adjudication, where the court postpones sentencing in exchange for probation compliance (Tex. Code Crim. Proc. Art. 42A.102). However, this is only granted if deemed in the victim’s best interest.
Conclusion
Being arrested for domestic violence in Texas triggers a complex legal process with severe consequences. By remaining calm, securing legal representation, avoiding contact with the alleged victim, and understanding the charges, you can take proactive steps to protect your rights. Texas domestic violence laws are strict, with recent legislative changes emphasizing victim protection and enhanced penalties.
Consulting an experienced criminal defense attorney is critical to navigating the legal system, challenging evidence, and pursuing the best possible outcome for your case. Contact Morgan Bourque Attorney at Law at 713-766-6001 or through our online form to schedule a confidential consultation.
Our experienced team, with over 50 years of trial expertise, is ready to protect your rights, guide you through Montgomery County’s courts, and fight for the best possible outcome in your case. Take the first step toward defending your future today.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Always consult a qualified professional to understand how the law applies to your specific situation.