By Deandra Grant, J.D., M.S. (Pharmaceutical Science), ACS-CHAL Forensic Lawyer-Scientist
If you were just arrested for assault or assault family violence in Texas, the first thing you need to understand is what you are actually charged with because “assault” in Texas covers a much wider range of conduct than most people realize, the penalties vary dramatically depending on who the victim is and what happened, and the family violence designation carries permanent consequences that extend far beyond the criminal case itself.
Three Ways to Commit Assault Under §22.01
- 22.01(a)(1) — Bodily Injury. A person commits assault by intentionally, knowingly, or recklessly causing bodily injury to another person, including the person’s spouse. “Bodily injury” means physical pain, illness, or any impairment of physical condition which is a low threshold that includes a bruise, a scratch, or pain from a push. This is the most commonly charged form of assault and the one that forms the basis of most family violence arrests.
- 22.01(a)(2) — Threat. A person commits assault by intentionally or knowingly threatening another with imminent bodily injury, including the person’s spouse. No physical contact is required. The threat must be of imminent injury (not future harm) and must be conveyed intentionally or knowingly, not recklessly.
- 22.01(a)(3) — Offensive Contact. A person commits assault by intentionally or knowingly causing physical contact with another person when the actor knows or should reasonably believe the other person will regard the contact as offensive or provocative. This is the lowest level of assault (ex. a shove, a poke, unwanted touching).
The mental state required differs by subsection. Bodily injury assault can be charged based on reckless conduct. Threat and offensive contact assault require intentional or knowing conduct.
The Penalty Structure
- 22.01(a)(1) bodily injury assault: Class A misdemeanor — up to 1 year in county jail and a fine up to $4,000. This is the default for a first-offense bodily injury assault between people who are not in a protected relationship and where no aggravating factors apply.
- 22.01(a)(2) threat and §22.01(a)(3) offensive contact: Class C misdemeanor — fine only, up to $500. No jail time at the Class C level.
Those base penalties escalate significantly based on who was assaulted and what happened:
Prior family violence conviction: Bodily injury assault against a family or household member or dating partner becomes a third-degree felony (2 to 10 years) if the defendant has been previously convicted of assault against a person in one of those relationships, or of a protective order violation or continuous violence based on family violence.
Impeding breathing or blood circulation (strangulation): Bodily injury assault that intentionally, knowingly, or recklessly impedes normal breathing or blood circulation by applying pressure to the throat or neck or by blocking the nose or mouth is elevated to a second-degree felony (2 to 20 years) regardless of prior convictions. A first-offense assault that would otherwise be a Class A misdemeanor becomes a second-degree felony the moment choking is alleged.
Public servant victim: Assault against a person the defendant knows is a public servant lawfully discharging official duties is a third-degree felony.
What Makes It a Family Violence Case
The family violence designation under the Texas Family Code is triggered by the relationship between the defendant and the alleged victim, not by the severity of the assault. Family violence applies when the assault is committed against a family member (persons related by blood, marriage, or adoption, including former spouses and parents of the same child), a household member (anyone currently or formerly living in the same dwelling), or a dating partner under Family Code §71.0021(b).
Family violence does not require marriage. It does not require cohabitation. It does not require a romantic relationship. A brother and sister, a parent and adult child or a former roommate all fall within the definition if the assault involves a qualifying relationship.
When a family violence case is charged, Texas Code of Criminal Procedure Article 42.013 requires the court to make an affirmative finding of family violence if the facts support it. That finding carries consequences that go far beyond the criminal case itself, which are addressed in detail in our separate article on the family violence affirmative finding.
Case Results
What Happens After a Family Violence Arrest
Emergency protective order. Law enforcement officers are required to request a magistrate’s emergency protective order in most family violence cases involving bodily injury. The magistrate may issue an order prohibiting the defendant from going near the alleged victim, their residence, their place of employment, or their children’s school. It is effective immediately upon arrest before any hearing.
No-contact order. The magistrate may also issue a no-contact order as a condition of bond. Violating either order is a separate criminal offense and can result in immediate bond revocation.
The State prosecutes — the victim does not drop charges. A common misconception is that the alleged victim can choose to drop a family violence charge. They cannot. Once a family violence case is reported, the decision to prosecute belongs to the State. The prosecutor controls whether charges are filed, whether a plea is offered, and whether the case goes to trial.
What the Defense Examines
Self-defense under §9.31. Texas law allows a person to use force when they reasonably believe it is immediately necessary to protect themselves against the other person’s use or attempted use of unlawful force. In family violence cases, self-defense is frequently available because many incidents involve mutual aggression where both parties used force.
Defense of others under §9.33. A person may use force to protect a third person (including a child) when they reasonably believe the third person would be justified in using force to protect themselves.
Lack of the required mental state. Reckless bodily injury assault requires proof that the defendant consciously disregarded a substantial and unjustifiable risk. Accidental injury is not reckless assault.
False accusation. Family violence charges arise frequently in contentious separation, divorce, and custody proceedings. The incentive to exaggerate or fabricate is real, and the defense must investigate the surrounding circumstances, the history of the relationship, and the alleged victim’s statements for internal consistency.
Speak With Deandra Grant Law
A family violence arrest creates immediate legal pressures including bond conditions, no-contact orders, and a prosecution that moves forward regardless of the alleged victim’s preferences. Deandra Grant Law brings more than 30 years of criminal defense experience and over 500 trials to every case.
Call (214) 225-7117 or visit texasdwisite.com for a confidential consultation.
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