Texas Continuous Violence Against the Family: TPC §25.11
Posted on by Michael Lowe.
On September 1, 2019, prosecutors in the State of Texas were given greater power to charge and convict individuals based upon allegations of domestic violence when HB1661 became law. In the House Committee Report, lawmakers explained the purpose of the new legislation as follows:
“It has been noted that prosecutors are unable to pursue charges against a person for an offense of continuous violence against the family if the assaults occur in more than one county. C.S.H.B. 1661 seeks to address this issue by providing for the prosecution of such an offense in any county in which the defendant assaulted the victim.”
Texas Penal Code §25.11: Continuous Violence Against the Family
This law does two things. First, it defines the crime of “continuous violence against the family.” In Texas, as of September 1, 2019:
- A person commits an offense if, during a period that is 12 months or less in duration, the person two or more times engages in conduct that constitutes an offense under Section 01(a)(1) against another person or persons whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code….
(e) An offense under this section is a felony of the third degree.
Second, the statute provides specific guidance regarding any jury trial on the charges of Continuous Violence Against the Family. If the case goes to trial before a jury, the jurors are not required to agree unanimously on three things:
- the specific conduct in which the defendant engaged that constituted an offense under Section 01(a)(1) against the person or persons described by Subsection (a),
- the exact date when that conduct occurred, or
- the county in which each instance of the conduct occurred.
However, the law is clear that the general standard of a unanimous jury remains insofar as other aspects of the case. It states that “the jury must agree unanimously that the defendant, during a period that is 12 months or less in duration, two or more times engaged in conduct that constituted an offense under Section 22.01(a)(1) against the person or persons described by Subsection (a).”
See, Texas Penal Code §25.11(b).
What is Family Violence in Texas?
In Texas, “family violence” involves one of three things: physical acts involving family members; abuse involving a child in the family or household; or dating violence. Many are amazed at the wide reach provided by the law to include individuals in allegations of “family violence.” Consider the following:
1. The Definition of Family
The criminal statutes provide a distinct definition of family for the purposes of charging for the crime of family violence. Under TPC §71.003, “[f]amily” includes individuals related by consanguinity or affinity, as determined under Sections 573.022 and 573.024, Government Code, individuals who are former spouses of each other, individuals who are the parents of the same child, without regard to marriage, and a foster child and foster parent, without regard to whether those individuals reside together.
Notice how wide the definition of family extends in this provision: it includes relatives, divorced ex-spouses, foster children, foster parents, adopted children, adoptive parents, individuals sharing the same ancestor or descendant, and anyone who has had a child together (Baby Daddy, Baby Mama).
There is no requirement that any of these people currently live in the same residence in order for the courts to decide that they are members of a family.
2. The Definition of Household
Under Texas law, “household” in family violence cases means a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other, and a “member of a household” also includes a person who previously lived in the household. See TPC §§ 71.005,71.006.
3. The Definition of Dating
For purposes of prosecution on family violence charges, a “dating relationship” means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. Sex is not a prerequisite to being held under the law as having dated. However, a casual acquaintanceship or ordinary fraternization in a business or social context does not constitute a “dating relationship” as defined by the statute. See TPC §§ 71.0021(b),(c).
So when does a relationship become a “dating relationship” susceptible to family violence charges? To prove the existence of a dating relationship, the state must provide admissible evidence involving three things:
(1) the length of the relationship;
(2) the nature of the relationship; and
(3) the frequency and type of interaction between the persons involved in the relationship.
4. The Definition of Family Violence
Specifically, Texas lawmakers have defined “family violence” in Texas Penal Code §71.004 as follows:
(1) an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself;
(2) abuse, as that term is defined by Sections 261.001(1)(C), (E), (G), (H), (I), (J), (K), and (M), by a member of a family or household toward a child of the family or household; or
(3) dating violence, as that term is defined by Section 71.0021.
Accordingly, in the State of Texas, allegations of Continuous Violence Against the Family means more than a conflict between a husband and wife. It can involve any member of the household. It can involve physical harm as well as sexual assault. It can also involve conflicts between a couple who is (or has been) in a romantic, dating relationship.
The Criminal Defense Impact of Texas Penal Code §25.11
From a criminal defense perspective, any allegation of someone committing Continuous Violence Against The Family in violation of TPC §25.11 must be taken very seriously. Why?
Incorporates Other Incidents Within Past 12 Months
One concern is how broad the investigation can become in these matters. This is because the statute gives power to an ADA (Assistant District Attorney) to take past incidents of domestic violence within the established time period and include them in the charges. This is true even if the state’s investigation confirms that these past incidents happened in a different county from the county where the current charges are filed. It is true even if the past incidents happened outside of Texas’ state line.
Boosts Conviction to 3rd Degree Felony
Another concern is that by filing charges of Continuous Violence Against The Family in violation of TPC §25.11 boosts the prosecution’s domestic violence case to one that is seeking a third-degree felony conviction. This is life-changing: punishment upon conviction for a Texas Third Degree Felony charge involves incarceration in the Texas Department of Criminal Justice for a minimum of two (2) years and a maximum of ten (10) years, with a possible monetary fine not to exceed $10,000.
For more on felony charges and sentencing, read our earlier discussions in:
- Felony Charges under Texas and Federal Law: Criminal Defense Overview; and
- Will You Go To State Jail Or Texas Prison? The Importance Of Plea Negotiations.
Defenses to Continuous Violence Against the Family Charges
Even the suggestion law enforcement is suspicious of an individual and an investigation is underway regarding potential Continuous Violence Against the Family Charges warrants an aggressive and experienced criminal defense strategy.
This is particularly important in situations where there is an ongoing child custody dispute or where there is a pending divorce proceeding here in Texas. Family law attorneys well-versed in the Texas Family Code and the civil system may have little if any significant dealings with police and prosecutors much less the intricacies of the criminal justice system.
Criminal cases are controlled by a separate body of law with different rules of evidence, different burdens of proof, and different procedural requirements than the civil system where divorces are filed and child custody disputes are litigated.
From a criminal defense perspective, these charges often demand a complicated and multi-leveled analysis with an independent investigation into the underlying facts of the case. Among these considerations will be:
Statutory Defenses Under TPC 25.11
When faced with a formal Continuous Violence Against the Family charge, a criminal defense lawyer will carefully study the listed limitations on the charges that the prosecution can pursue as explained in Texas Penal Code 25.11(c),(d):
The charge must meet the statutory criteria regarding lesser included offenses, etc.:
A defendant may not be convicted in the same criminal action of another offense the victim of which is an alleged victim of the offense under Subsection (a) and an element of which is any conduct that is alleged as an element of the offense under Subsection (a) unless the other offense:
(1) is charged in the alternative;
(2) occurred outside the period in which the offense alleged under Subsection (a) was committed; or
(3) is considered by the trier of fact to be a lesser included offense of the offense alleged under Subsection (a).
2. Number of Counts
The defense must also investigate the past acts and criminal history of the accused. This is because the statute includes language that does not allow the prosecutor to charge the accused with the same crime against the same victim a second time:
A defendant may not be charged with more than one count under Subsection (a) if all of the specific conduct that is alleged to have been engaged in is alleged to have been committed against a single victim or members of the same household, as defined by Section 71.005, Family Code.
Elements of the Prosecution’s Case
The criminal defense attorney will spend significant time comparing the evidence to be introduced by the ADA against the elements of the statute itself and all its nuances. Each aspect of the case in chief must be reviewed.
Is there sufficient evidence to prove the statutory definitions, such as:
- The household?
- The family?
- The dating relationship?
What is the past criminal record that is being referenced? Where did it originate? Was it within the 12-month time period? Are there defenses to be considered here?
Constitutional Due Process Concerns
Additionally, the procedural aspects of the underlying investigation must be considered: what did law enforcement do before the file was transitioned to the ADA for prosecution?
- Was there an illegal search?
- Was there an illegal seizure?
- Was there a proper Miranda Warning?
- Was there any investigation into the possibility of false allegations (as can happen in a pending divorce proceeding)?
After the criminal defense case has been compiled, the defense lawyer can then take steps to address the charges of Continuous Violence Against the Family. This will include discussions with the ADA as well as possible requests for relief from the criminal court judge.
Insufficient evidence of an element of the statute may result in plea bargaining down to a less serious charge. Impropriety in the investigation may result in an evidentiary hearing requesting formal relief (which can include dismissal of the charge).
For more, read:
- Examining Trials in Texas;
- What is Probable Cause for Police to Arrest in Texas? and
- The Early Part of a Texas Criminal Case in State or Federal Court.
Continuous Violence Against the Family Charges in Texas
Those accused of Continuous Violence Against the Family are facing significant time behind bars should they be convicted. Some may be shocked to realize that these allegations have been made, particularly when they lacked any intent to hit or harm. Reckless conduct, once shown, is enough for a conviction on a family violence charge. See, Kemp v. State, No. 12-18-00030-CR (Tex. App. Oct. 3, 2018).
Having the assistance of an experienced family violence criminal defense attorney in these matters cannot be underestimated.
To learn more, watch my video, Family Violence Charges: 5 Reasons To Leave Before The Police Arrive:
- Family Violence In Texas: Crimes Based Upon Domestic Violence – It’s More Than A Fight That Turns Physical;
- Domestic Assault in Texas: Family Violence between Those Living in the Same Household;
- Family Violence And Assault Offenses: Legal Procedure Guide; and
- Top 10 Mistakes Defending Texas Family Violence Cases.
For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth articles,” Pre-Arrest Criminal Investigations” and “10 Questions to Ask Before You Hire a Criminal Defense Lawyer.“
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