By Texas Criminal Defense Lawyer Jeremy Rosenthal
A major component of what makes domestic or family violence severe criminal charges in Texas are affirmative findings of family violence. An affirmative finding of family violence (AFFV) is a declaration sought by the prosecution and made by a judge which triggers additional collateral consequences above and beyond a regular assault case.
An AFFV can be made by the Court whether the case was a guilty plea, no contest plea, or whether the accused was found guilty. They can even apply to fine-only misdemeanor class c charges.
For more reading on other aspects of domestic violence charges you can go here.
Consequences of an Affirmative Finding of Family Violence
A second arrest for domestic violence charges can be elevated from a class a misdemeanor (Up to a year of county jail and up to a $4k fine) to a Third Degree Felony (2 – 10 years in the Texas Department of Corrections and up to $10k fine).
The family member doesn’t have to be the same person. In fact, a common scenario I see is someone who at times decades before had plead guilty to what they thought was a traffic level offense of getting into a fight with a parent, sibling or spouse to pay the fine and move on. Then upon the subsequent arrest – they are hammered with a felony charge.
Inability to Non-Disclose Criminal Charges
The affirmative finding bars non-disclosure or hiding the case from the public once the case is over. Not only this, but a popular argument I’ve seen prosecutors make is they believe the Texas Legislature intended to create a specific class of offender with the AFFV who is not eligible for non-disclosure in any cases at all that person may have been arrested for.
Here’s an example: A person pleads guilty to domestic violence and gets deferred in the year 2010. In 2020 they are arrested and plead guilty for DWI and otherwise qualify for non-disclosing the DWI to hide that arrest from public view. The prosecution can argue (with varying degrees of success) the person isn’t eligible to non-disclose the DWI because of the DV plea from 2010.
Both Texas and Federal law can restrict your rights to firearm possession and ownership. Federal law prohibits those convicted of domestic violence from possession. Texas – and perhaps other states – restrict rights for possession for special permitting to carry firearms.
Divorce, Custody and Adoption Issues
A person with an affirmative finding of family violence cannot be named a managing conservator of a child or a joint managing conservator of a child. It goes without saying this can be the most devastating consequence of them all because it could mean losing your children in a divorce proceeding.
The Shattered Glass Effect – Indirect and Collateral Consequences
I’ll go geek lawyer for a second — criminal charges have what we call “direct” consequences and “collateral consequences.” An example of a direct consequence of an affirmative finding of family violence would be a subsequent charge can be enhanced. It’s predictable and fairly certain to happen upon a 2nd arrest.
But what about getting fired from a job 8 years later? Can the legislature change the law for the worse 15 years from now and will it affect someone? How others view criminal charges over time is thoroughly unpredictable. We just know it can be bad.
I call remote collateral consequences the “shattered glass” effect. We simply can’t predict them. Affirmative findings have far reaching consequences which we just can’t calculate.
*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization. He is designated as a Texas Super Lawyer by Thomson Reuters.