In Texas, an assault family violence charge with a previous conviction is a third-degree felony, punishable by 2 to 10 years in prison and a fine of up to $10,000.1State of Texas. Texas Penal Code 12.34 – Third Degree Felony Punishment A first-time family violence assault is normally a Class A misdemeanor handled in county court with a maximum of one year in county jail. The prior conviction changes the courtroom, the sentencing range, and a long list of consequences that outlast the case itself.
What Kind of Prior Conviction Triggers the Felony
Not every criminal record turns a new assault into a felony. The earlier conviction has to be for a specific violent offense committed against someone in a family, household, or dating relationship. Qualifying priors include any assault or violent offense under Chapter 22 of the Penal Code, criminal homicide under Chapter 19, kidnapping, aggravated kidnapping, indecency with a child, continuous violence against the family, or a violation of a family-violence protective order.2Texas Constitution and Statutes. Texas Penal Code 22.01 – Assault Out-of-state convictions count when the elements are substantially similar to one of those Texas offenses.
The current alleged victim does not have to be the same person from the earlier case. A prior conviction for assaulting an ex-spouse triggers the enhancement even if the new complainant is a current girlfriend, a roommate, or a co-parent. The state looks at your history of violence across relationships.
Deferred Adjudication Still Counts
This is where people most often get blindsided. If your earlier family violence case ended in deferred adjudication community supervision, and the judge dismissed the case after you completed probation, Texas still treats it as a prior conviction for enhancement purposes. The statute says so explicitly: a guilty or no-contest plea that resulted in deferred adjudication qualifies, whether or not a sentence was ever imposed.3State of Texas. Texas Penal Code 22.01 – Assault Many defendants believe an old deferred case is gone. It is not, and a second arrest is often the moment they find out.
Who Counts as a Family or Household Member
The enhancement only applies when the current complainant fits one of three relationship categories under the Texas Family Code. “Family” covers anyone related by blood or marriage, a former spouse, a foster parent or foster child, or the other parent of your child.4Justia Law. Texas Family Code 71.003 – Family “Household” simply means people who live in the same home, related or not.5State of Texas. Texas Family Code 71.005 – Household A “dating relationship” is an ongoing or past romantic or intimate relationship, judged by length, nature, and frequency of contact; casual social acquaintances do not qualify.6State of Texas. Texas Family Code 71.0021 – Dating Violence These definitions are broad enough to sweep in ex-spouses, roommates, unmarried co-parents, and on-and-off partners.
Prison Time, Probation, and Stacked Enhancements
A third-degree felony conviction in Texas means 2 to 10 years in the Texas Department of Criminal Justice, plus an optional fine of up to $10,000.1State of Texas. Texas Penal Code 12.34 – Third Degree Felony Punishment The judgment will almost always include an “affirmative finding of family violence,” which affects parole eligibility, firearm rights, and any future custody proceeding.
Probation is legally possible but harder to get with a prior. When a court does grant community supervision on a family violence case, expect strict conditions. The defendant must complete a Batterer Intervention and Prevention Program, beginning attendance within 60 days and paying the full program cost if found able. The court must also order a $100 fine to a local family violence center and can require reimbursement of the victim’s counseling costs for up to one year.7State of Texas. Texas Code of Criminal Procedure 42A.504 – Community Supervision for Certain Offenses Involving Family Violence
The range gets worse if you have another prior felony beyond the qualifying family violence conviction. Under the habitual offender statute, a defendant charged with a third-degree felony who has one prior final felony conviction (other than a state jail felony) is punished as if the current offense were a second-degree felony, raising the range to 2 to 20 years. Two prior felony convictions push the range to 25 years to life.8State of Texas. Texas Penal Code 12.42 – Penalties for Repeat and Habitual Felony Offenders Prosecutors regularly stack these enhancements when the record supports it.
Other Ways the State Can Reach a Felony
Even if the prior conviction turns out to be defective, the state may have a second theory. A family violence assault involving choking, strangulation, or any interference with breathing or blood flow, including applying pressure to the throat or neck or blocking the nose or mouth, is a third-degree felony on the first offense with no prior conviction needed.3State of Texas. Texas Penal Code 22.01 – Assault Prosecutors do not have to pick between theories; if both apply, attacking one does not defeat the other.
There is also a stand-alone offense called continuous violence against the family. Two or more qualifying assaults within a 12-month window is a third-degree felony on its own, whether or not a prior conviction exists. The two incidents do not need to involve the same victim, the same county, or any prior arrest, and jurors do not have to agree unanimously on which specific incidents happened, so long as they agree at least two occurred.9State of Texas. Texas Penal Code 25.11 – Continuous Violence Against the Family The penalty range matches other third-degree felonies. Prosecutors sometimes charge this instead of a prior-conviction enhancement when the earlier conviction is old or challengeable.
You Lose Your Guns
Texas and federal law both restrict firearm possession after a family violence conviction, and they do not line up. Under Texas law, a person convicted of a Class A misdemeanor family violence assault cannot possess a firearm for five years after completing the sentence, including any confinement or community supervision.10State of Texas. Texas Penal Code 46.04 – Unlawful Possession of Firearm After five years, state law allows possession again.
Federal law does not. The Lautenberg Amendment permanently bans anyone convicted of a misdemeanor crime of domestic violence from possessing any firearm or ammunition, with no expiration.11Office of the Law Revision Counsel. 18 USC 922 – Unlawful Acts Federal law separately bans firearm possession for life after any felony conviction. Possessing a gun in violation of the federal prohibition is itself a federal felony. When your current charge is a third-degree family violence felony, both the federal misdemeanor rule and the federal felon-in-possession rule apply. The state’s five-year clock is effectively meaningless.
Custody and Visitation
Family violence findings reach into any current or future custody case. Under the Family Code, credible evidence of a pattern of family violence creates a rebuttable presumption that giving that parent sole managing conservatorship, or the right to decide where the child lives, is not in the child’s best interest.12State of Texas. Texas Family Code 153.004 – History of Domestic Violence or Sexual Abuse The court starts from the position that you should not have primary custody, and you carry the burden of changing that view.
A court also cannot appoint joint managing conservators when credible evidence shows a history or pattern of family violence by one parent against the other parent, a spouse, or a child. A separate rebuttable presumption operates against unsupervised visitation.12State of Texas. Texas Family Code 153.004 – History of Domestic Violence or Sexual Abuse Courts that do allow visits often condition them on supervision, sobriety during contact, or completion of a batterer intervention program. A protective order issued within the two years before the custody filing weighs heavily.
You Cannot Seal or Erase This Record
A family violence conviction is essentially permanent on background checks. Texas has two record-clearing tools: expunction, which destroys the record, and nondisclosure, which seals it from public view. Expunction is available only where the case ended in dismissal, acquittal, or was never charged. If you are convicted, expunction is off the table.
Nondisclosure orders are categorically unavailable for any offense involving family violence, misdemeanor or felony, and this applies even when the case was resolved through deferred adjudication. It gets worse: having any family violence offense on your record, including a deferred one, disqualifies you from nondisclosure on any other offense on your record. Employment, housing, and professional licensing background checks will keep seeing it.
The one realistic clearing path is if the current case is dismissed or ends in a not-guilty verdict. Even then, expunction requires filing a petition, and it is not automatic.