Sometimes the role of a defense attorney is to help a client manage consequences. Obviously, being versed in the consequences of different types of cases is an important part of that role. When it comes to Assault Family Violence (AFV) cases, the sad truth is that criminal record implications are not well understood–even by some attorneys and prosecutors. If you’ve been charged with AFV, you should beware of the following hidden consequences.

An AFV Plea Cannot be Removed from Record–nor any Future Case Removed

With a couple of narrow exceptions, any form of guilty or no-contest plea will result in a permanent blemish on person’s criminal record–even if the case was dismissed after deferred adjudication. Section 411.081 of the Texas Government Code explains that a person is not entitled to petition the court for a nondisclosure “if the person was placed on the deferred adjudication community supervision for or has been previously convicted or placed on any other deferred adjudication for . . . an offense involving family violence.” Not only does this mean that an AFV guilty plea will not be removed from your record, it also means you are forever prohibited from obtaining a nondisclosure on any future case (regardless of the charge).

As you can imagine, this can be an unpleasant surprise years down the road for people who were told that pleading guilty and receiving deferred adjudication would help keep the case off their record. Avoiding these unfortunate consequences requires slightly creative plea bargaining or even asserting the right to trial.

A Second AFV Case can be Filed as a Felony

The laws in Texas have very little tolerance for repeat AFV offenders. Section 22.01 of the Texas Penal Code permits the State of Texas to file a second Assault Family Violence case as a Third Degree Felony–as long as the previous AFV resulted conviction. This applies even when the first AFV case was a Class C Misdemeanor or if the first case was not filed as an AFV but involved AFV facts.

A Class C AFV can be Sometimes be Expunged

Cases filed as Class C Misdemeanors or reduced to a Class C Misdemeanors can and should be expunged if the case was resolved by deferred adjudication. Unlike filing a nondisclosure, an expunction will erase the existence of a case and the right to an expunction is not dependant on the type of offense. An expunged offense cannot be used to enhance a subsequent offense or as the basis of denying a future nondisclosure.

Assault Family Violence Statistics in Collin County

The following numbers are compiled the Texas Office of Court Administration for the year 2011. They include prosecution data on offenses greater than a Class C Misdemeanor. The surprisingly low number of cases reported as “Family Violence” at the time of disposition is likely the product negotiations which transform a case to a simple Assault by “abandoning” the Family Violence allegation.

• 571 total Misdemeanor Assault Family Violence cases on the docket
• 70 total Misdemeanor Assault Family Violence cases disposed (resolved)
• 44 total Misdemeanor Assault Family Violence cases resolved by guilty plea – 63% of disposed cases
• 16 total Misdemeanor Assault Family Violence dismissals – 23% of disposed cases
• 1 Misdemeanor Assault Family Violence trial
• 39 total Felony Assault Family Violence cases on the docket
• 5 total Felony Assault Family Violence cases disposed (resolved)
• 3 total Felony Assault Family Violence cases resolved by guilty plea – 60% of disposed cases
• 0 total Felony Assault Family Violence cases resolved by dismissal
• 0 total Felony Assault Family Violence cases resolved by trial

Assault Family Violence Statistics in Dallas County

• 3,282 total Misdemeanor Assault Family Violence cases on the docket
• 298 total Misdemeanor Assault Family Violence cases disposed (resolved)
• 135 total Misdemeanor Assault Family Violence cases resolved by guilty plea – 45% of disposed cases
• 136 total Misdemeanor Assault Family Violence dismissals – 46% of disposed cases
• 1 Misdemeanor Assault Family Violence trial
• 1,538 total Felony Assault Family Violence cases on the docket
• 723 total Felony Assault Family Violence cases disposed (resolved)
• 222 total Felony Assault Family Violence cases resolved by guilty plea – 31% of disposed cases
• 82 total Felony Assault Family Violence cases resolved by dismissal – 11% of disposed cases
• 4 total Felony Assault Family Violence cases resolved by trial

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.