The Family Violence Finding
The Family Violence (or FV) finding is a big reason why these types of cases are handled differently from other misdemeanors and felonies. An FV finding is automatic if there is an assault against a family member, partner, or even a roommate. While a judge may read an “affirmative FV finding” into the record, it is important to note that the judge CANNOT waive the finding. Even if the judge does not affirmatively hold that an FV finding applies, a judge or jury in a later case can find that it DOES apply. This is important because it means that the FV finding is not a point of plea negotiations.
When Does it Apply?
The FV finding applies for all convictions AND for all deferred adjudications. This is another important point because you may jump to the conclusion that because there is no conviction with a deferred adjudication, there is no FV finding. However, the law clearly states that FV findings apply even for a deferred adjudication. For this reason I almost never recommend my clients agree to a plea for deferred adjudication in Domestic Violence Cases.
Why is an FV finding so bad?
There are four main reasons to avoid an FV finding.
1. Any future DV charge can be enhanced to a felony. Even a charge that would be considered “minor” is automatically bumped to a felony. Even a false accusation will be charged as a felony.
2. You can’t own a firearm for the rest of your life. Even though the Texas law states that the prohibition lasts five years, the Federal equivalent states that the prohibition on gun ownership is for life.
3. An FV finding stains your criminal history. Especially in today’s political climate, an FV finding is going to affect your ability to get a job, rent an apartment and maybe even find a dating partner. The FV finding is public record and anyone can see it.
4. An FV finding is forever. Unlike some other crimes, there is no way to seal or expunge a Domestic Violence conviction or even deferred adjudication. Unless the laws change, the FV finding will stay on your record for life.
A Note on the Prohibition of Firearms
In February 2023, the 5th Circuit released an opinion stating that the prohibition on firearms is unconstitutional as applied to Protective Orders. This finding did NOT extend to people who have family violence convictions on their record.
I have seen some misinformation online regarding this decision. If you have previously had your firearm rights taken away, do not assume that this decision changes that. However, given that our current Supreme Court’s stance toward the 2nd amendment, it might be worthwhile to keep track of developments. You can follow my YouTube Channel for updates.
How to Avoid a FV finding?
There are only a few ways to avoid a FV finding after you have been charged with DV Assault:
1. Dismissal by the prosecutor,
2. Acquittal by a jury or
3. A Pretrial Diversion program that ends in dismissal. (Discussed later.)
All other outcomes – guilty plea, deferred adjudication, or a guilty verdict at trial – all result in a FV finding. The only rare exception to this hard and fast rule is if you convince the prosecutor and judge that the alleged victim in the case is not classified as a partner. The definition is broad, and can even include roommates, but if you can make that case and get the FV enhancement dropped, you can escape the FV finding.
I would use caution here, because a later judge or jury can reverse that decision. You can ask for the judge to state on the record that there is explicitly not a finding of family violence. However, even this can be overlooked in future cases. Therefore, I will rarely accept a plea offer that involves a conviction even if the prosecutor is “waiving” the FV finding. Instead, I would seek a resolution that gets us to a dismissal.
Download the free PDF guide by clicking the image below:
