What happens after a domestic violence 911 call in Texas?
Usually an arrest the same night, because officers responding to a family violence call rarely leave without one. Then a charge, most often assault family violence under Tex. Penal Code §22.01, a Class A misdemeanor that becomes a third degree felony with a prior conviction or an allegation of choking. An emergency protective order typically issues at magistration, and from that point the case belongs to the State: the person who called cannot drop it.
- The arrest decision is made in minutes; the consequences are engineered to last.
- Choking allegations turn a misdemeanor into a felony, and two incidents in 12 months can be charged as continuous family violence.
- An emergency protective order can bar you from your own home, and violating it is a new crime even if you were invited back.
- A family violence finding, even on a misdemeanor, bars firearm possession under state and federal law.
- Complaining witnesses recant constantly. Prosecutors proceed anyway, so the defense must be built on evidence, not apologies.
Family violence cases are unlike other assault cases in one structural way: the system is built on the assumption that the complaining witness may later minimise or recant, so every lever, the mandatory-style arrest, the protective order, the no-drop policy, is designed to run without them. Defending these cases means understanding that machinery. Peter M. Barrett has defended family violence cases in Dallas County since 1994, with more than 150 jury trials. See our Dallas violent crime defense page.
The charges, from ticket to prison range
| Allegation | Charge | Range |
|---|---|---|
| Offensive contact with a family or household member | Class C misdemeanor | Fine up to $500, but the family violence finding still attaches |
| Bodily injury to a family or household member, §22.01(a)(1) | Class A misdemeanor | Up to 1 year and $4,000 |
| Impeding breath or circulation, the choking allegation | Third degree felony | 2 to 10 years |
| Bodily injury with a prior family violence conviction | Third degree felony | 2 to 10 years |
| Two or more incidents within 12 months, §25.11 | Continuous violence against the family, third degree felony | 2 to 10 years, and the jury need not agree on which two incidents |
| Serious bodily injury or a deadly weapon | Aggravated assault, §22.02 | Second degree, first degree against a family member with a weapon and serious injury |
The choking row deserves its own sentence: an allegation of a hand near a throat, with no visible injury and no medical record, is routinely the difference between a misdemeanor and a felony, which is why that single allegation gets litigated harder than any other line in the report. The full assault framework is in penalties for assault in Texas.
What happens mechanically, step by step
- The call and the arrest. Officers separate the parties, photograph, take statements, and in practice arrest whoever the evidence points at that night. Explanations at the scene become the State's exhibit.
- Magistration and the emergency protective order. Within 48 hours you see a magistrate, bail is set, and an EPO often issues, barring contact and sometimes barring you from your own residence for 31 to 91 days.
- The no-contact reality. The order binds you, not the other person. An invitation back home does not suspend it, and a text reply can be charged as a violation.
- The State takes over. An affidavit of non-prosecution from the complaining witness is considered, not obeyed. Dallas County prosecutes family violence cases on the evidence gathered the first night.
- The finding follows you. A family violence finding, even on a Class A plea that sounds survivable, bars firearm possession under §46.04(b) and federally under 18 U.S.C. §922(g)(9), enhances any future allegation to a felony, and cannot be sealed later. The plea decision is where those futures are decided: see pleading guilty or not guilty.
Where these cases are defended
- The first-night evidence, examined slowly. The 911 audio, bodycam, photographs and injuries get one fast reading from police and a slower, more honest one from the defense. Injuries inconsistent with the account, mutual combat, and self-defense are real and common.
- The choking element. Impeding breath or circulation has a definition, and no visible injury plus no medical corroboration plus a moving account is reasonable doubt terrain.
- Recantation handled properly. A witness who wants to correct the record needs independent counsel and a lawful, documented route. Anything that looks like pressure from the accused becomes a tampering charge, which is worse than the original case.
- The finding itself is negotiable terrain. Outcomes that avoid an affirmative family violence finding protect firearm rights and the future enhancement exposure, and are sometimes worth more than a lighter sentence with the finding attached.
Common questions
Can the victim drop domestic violence charges in Texas?
No. Charges belong to the State, not the complaining witness. An affidavit of non-prosecution is weighed by the prosecutor but does not end the case, and Dallas County routinely proceeds on the first-night evidence alone.
Is a first domestic violence charge a felony in Texas?
Usually a Class A misdemeanor for bodily injury. It becomes a third degree felony where choking is alleged, where there is a prior family violence conviction, or where two or more incidents in 12 months are charged as continuous violence under section 25.11.
Can I go home if my spouse invites me back while the protective order is active?
No. The order binds you regardless of the other person's wishes, and returning on an invitation is still a violation, chargeable as its own offense. Orders can be modified through the court; that is the only safe route back.
Will I lose my gun rights over a misdemeanor family violence case?
A conviction with a family violence finding bars possession for five years under Texas Penal Code 46.04(b) and indefinitely under federal law, 18 U.S.C. 922(g)(9). This is one of the main reasons the finding, not just the sentence, is the battleground.
The whole thing was an argument that got loud. Will the case really go forward?
If an arrest happened, assume yes until the evidence says otherwise. The system is deliberately built not to depend on the complaining witness's later wishes. The good news is the same machinery produces thin cases: no injury, contradictory statements and audio that does not match the report are the raw material of dismissals and acquittals.
The law this article describes, at the source. Every rule above can be checked against it.
- Tex. Penal Code §22.01: assault, family violence grading and the choking triggers
- Tex. Penal Code §25.11: continuous violence against the family
- Tex. Penal Code §46.04(b): firearm possession after a family violence conviction
- 18 U.S.C. §922(g)(9): the federal misdemeanor domestic violence firearm bar
This article is general legal information about Texas and federal law, not legal advice about your case. Reading it does not create an attorney-client relationship. Laws change, so confirm the current rule with a licensed criminal defense attorney about your specific facts. Request a free, confidential case review.