The Family Violence Finding (or Domestic Violence Finding)
The family violence finding is a unique characteristic of domestic violence charges. It is an enhancement, meaning that it is an additional penalty on top of the usual punishment for misdemeanor or felony domestic violence. This post is for educational purposes only. It is not legal advice. If you are currently facing domestic violence charges and you’re not represented by an experienced criminal attorney.
What is the Family Violence Finding?
A Family Violence Finding (or FV Finding) sets Family Violence assaults apart from other types of charges. The criminal justice system is especially harsh on crimes of violence. Even more so when the violence involves a family member. Therefore, laws are in place to add additional penalties for intimate partner violence above and beyond a fine or jail time.
If you are facing a pending charge for assault-family violence, now is the time to consider the consequences of the Family Violence finding. Once you are convicted (or even plea guilty in a deferred adjudication), the FV finding will stay for life. There is usually no way to expunge or seal the domestic violence conviction or the family violence finding that goes along with it.
When does the Family Violence Finding Apply?
The DV finding applies when the person assaulted was a family member, intimate partner, a dating partner, or in some cases, just a roommate. If you hear it referred to as a Domestic Violence Finding or DV Finding, this is another name for the same thing.
Article 42.013 of the Texas Code of Criminal Procedure states that a judge shall make an affirmative finding of family violence for convictions involving family members. That word “shall” is important, because that means the judge does not have discretion here. He or she must make an affirmative Domestic Violence finding in all cases involving domestic violence. This includes guilty pleas and even deferred adjudication as well.
Another important consideration is that the domestic violence finding can apply even if not explicitly stated on the record. Even if the prosecutor in your current case states that he is “not seeking a family violence finding”, a later prosecutor, even a prosecutor in a different county, could still use your current case to make the later assault charge a felony (more on that in the next section).
Consequences of a DV Finding
So, why is a family violence finding so bad? Not only does a finding of intimate partner violence restrict your rights, but under current Texas law, it stays with you forever. That’s right, the family violence finding does not expire, nor can it be sealed or expunged.
With a family violence finding, you:
- Can never own or possess a gun
- Will face a felony charge in future family violence cases
- Can get deported if you are not a U.S. citizen
- May not be able to qualify for a PR bond if you are arrested in the future
- Cannot seal or expunge the arrest even with a deferred adjudication
- Could face social stigma from having a family violence charge
- May lose professional licenses
- May lose your hunting license
- May be less believable when dealing with law enforcement in the future
Let’s break down the consequences a little bit further. If you own a gun, you would need to get sell or give it away. If a member of the same household owns a gun, they also would need to get rid of it or store it somewhere outside of the home. This is for life – the restriction does not expire.
Family violence charges in the future are automatically charged as a felony. Even if the case is weak, or the facts are very mild, it is a felony charge and therefore more serious and costly to you – even if the charge is later dismissed.
If you are not a U.S. citizen, a family violence conviction – even a misdemeanor, is almost certain to get you deported. If you are charged with domestic violence assault – or really any crime – it is a good idea to get the opinion of an immigration attorney in addition to you criminal defense attorney. Immigration consequences of an intimate partner conviction can be very severe.
Trouble with Bonding Out of Jail
Senate Bill SB6 took effect in 2021-2022, and restricts who qualifies for a PR bond. A PR or Personal Recognizance bond allows a person to be released pending trial without having to pay a bond. However, now persons who have a family violence conviction in their past will be ineligible for a PR bond in most cases.
Some judges will still offer $1 bond in some cases, but I wouldn’t count on it – especially if the new charge involves domestic violence. Even without SB! in place, judges will consider past convictions of intimate partner violence – even if the new charge is not a violent crime. Judges are tasked with keeping the community safe.
If a person accused of domestic violence is released and makes an attempt on the victim’s life, a portion of the blame will fall on the judge. Therefore, they are less likely to be lenient when they see a pattern of physical violence or abusive behaviors. It’s also why they are less likely to grant PR bonds in cases of domestic violence than other charges like DWI.
Social Stigma of a Family Violence Charge
Finally, the social stigma of a family violence finding is very real. It can affect future relationships, your ability to find housing or get a job. It can also leave you vulnerable to false charges of physical violence in the future and police might assume guilt even without evidence.
Cases Involving Family Violence are NOT Eligible for Expunction or Nondisclosure
Most cases that end in a deferred adjudication can be sealed after successful completion of the probation and a waiting period. This is not the case with family violence assaults. In fact, a deferred adjudication in a family violence case may as well be a conviction because in most cases, the consequences are the same.
You might think that a deferred adjudication would mean that there is no family violence finding since there wasn’t a conviction, but you would be wrong. The family violence finding attaches the same as if you were convicted of the charges. Because the FV conviction or deferred adjudication cannot be removed via expunction or nondisclosure, that means, they attach for life. That’s right, the FV finding NEVER leaves your criminal history.
Why Does the Law Treat Family Violence Offenses so Harshly?
Crimes involving physical violence, physical abuse, or sexual abuse are treated very seriously by the criminal justice system. Domestic abuse involving intimate partners are treated even more harshly because these abusive behaviors have gone seriously underreported for years.
Domestic violence affects people every day, and often it happens behind closed doors. However, false accusation of intimate partner violence are also common. The alleged victim can use the accusation of domestic violence as a weapon, which in itself is a form of emotional abuse.
The Prosecutor’s Perspective – a Cycle of Violence
When handling domestic violence charges, it is important to consider the way the prosecutor sees the case. Even when the intimate partner does not want to proceed with the case, the prosecutor might see this as a result of the cycle of violence – a psychological framework for understanding intimate partner violence.
The Cycle of Violence has 4 stages – tension building, incident of violence, reconciliation, and calm. If the alleged victim no longer wants to go forward with charges, or is even denying that physical abuse occurred at all, the prosecutor will sometimes make the assumption that this is simply the calm in the cycle of violence, and give no credence to the alleged victim’s statement.
The prosecutor now believes – or imagines – that the alleged victim is under the spell of psychological abuse, or emotional abuse by their intimate partner. This can be especially frustrating for criminal defense attorneys because the prosecutor will refuse to back down even when there is little or no evidence of physical violence.
How to Avoid a Family Violence Finding?
So now we know the reasons that the Family Violence finding is so bad. Now let’s talk about avoiding it. It is possible to avoid the domestic violence finding entirely in many cases, but to do this, you cannot take a conviction or agree to deferred adjudication. Either of these two results will lead to all the consequences of a domestic violence for life!
This means that you’re going to need a dismissal or acquittal at trial. You must force the prosecutor to at least consider trial. Often, once they take a good look at their case, they realize that it is weak in some area. Maybe a family member who is making accusations has holes in their story or is unavailable. Maybe there was no evidence of an assault and the witness is motivated to lie. Sometimes the alleged victim was actually the abuser, and is now using the accusation as psychological abuse.
There are infinite ways that a prosecutor’s case can seem much stronger until they take a good hard look and prepare for trial. And because of the severe consequences of a family violence conviction, you must force trial if they will not give in to dismissal. Be wary of accepting any plea deal in a family violence case (with one exception – see below.)
Protect Yourself from Family Violence Accusations
Most incidents that lead to a charge of intimate partner violence are a shade of grey. Usually, both partners have engaged in abusive behavior, whether that is emotional abuse, psychological abuse, or crosses over into physical abuse.
If you are in a situation where tempers are escalating, it is best to physically remove yourself from the situation. This is especially important if you have a criminal history that involves domestic violence. A police officer taking your story may not believe you if there are earlier incidents of domestic abuse. Even if you weren’t arrested on the previous charge, the police will still be able to see the report.
It is especially important to remove yourself if you are already on bond or probation for family violence. A new domestic charge on top of the old one will have consequences for each case.
The Family Violence Intervention Program
The exception that proves the rule is something called a deferred prosecution. In Travis County, this is called the Family Violence Intervention Program (FVIP). The FVIP Program does not lead to a conviction.
After you complete some classes to address family violence, take on community service hours and perhaps some other requirements, your domestic violence case is dismissed and can potentially be expunged. This option is not available in all jurisdictions, but is available in Travis County with agreement from the prosecutor. I often recommend FVIP to my clients when offered, but be careful of confusing this option with deferred adjudication.
An Experienced Attorney can help avoid a FV Finding that stays with you for life
Rob Chesnutt is an experienced criminal defense attorney. With a principal office in Austin, Texas, his firm ATX Legal serves Travis, Hays and Williamson counties. He regularly handles felony and misdemeanor domestic violence cases.
This post is for educational purposes only and is not to be construed as legal advice. If you would like legal advice on your specific case, we offer free case evaluations. Visit us at ATX.Legal.