How Does It Happen?
A family violence conviction in Texas carries all sorts of collateral damage.
It’s easy to pick up a charge of family violence. Sometimes all it takes is a telephone call.
Article 5.05of the Texas Code of Criminal Procedure requires the officer who responds to a disturbance call that “may” involve family violence to make a written report. They are required to give written notice of the victim’s legal rights.
Article5.08 prohibits mediation in a case involving family violence.
Effective September 1, 2007, Article 2.30 of the Code of Criminal Procedure was amended to state that the officer shall prepare a written report.
One phone call – one charge of family violence.
Lest you be tempted to accept a plea deal, you should be aware of all of the additional baggage that comes with a family violence conviction.
Deportation. Any alien who is convicted at any time for a crime of domestic violence is deportable. Convictions include deferred adjudication. Any alien convicted of violating a protective order is deportable. In 1996, Congress changed the definition of “conviction” to include “if adjudication of guilt has been withheld where (i) the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.” So even a “non contest” plea can lead to deportation.
Federal Firearms Violations
18 U.S.C. 922 (g)(9) provides:It shall be unlawful for any person who has been convicted in any court of a misdemeanor crime of domestic violence , to….possess…, any firearm or ammunition . It is clear that a person under a Chapter 85 Family Code Protective Order, issued after notice and hearing, can be prosecuted under 18 U.S.C.922 for a felony. While an emergency protective order that was obtained without notice to the defendant would not qualify under federal law as a bar to possessing a firearm, it would under state law. See Texas state law 46.04(c)Texas P
Custody of Children
Section 153.004 of the Texas Family Code outlines some important consequences upon a finding of a “history of domestic violence” in a suit affecting the parent child relationship. The Family Code requires that the court consider evidence of abuse that occurs within two years of the filing and the court may not appoint joint managing conservators if credible evidence is presented of abuse. The Court MUST deny access to a child to a parent who has a history or pattern of committing family violence.
Spousal Maintenance
Section 8.051 of the Texas Family Code provides for spousal maintenance in the dissolution of a marriage that lasted more than 10 years. However, if a spouse was convicted of or received deferred adjudication for a criminal offense that constitutes an act of family violence, the person’s spouse is eligible for maintenance regardless of the length of marriage.
The moral is to take every family violence allegation seriously. If you have been charged with family violence, contact the lawyers at Hammerle Finley Law Firm.
