By Deandra Grant, J.D., M.S. (Pharmaceutical Science), ACS-CHAL Forensic Lawyer-Scientist
This is one of the most common questions we hear from people charged with family violence in Texas: “My spouse doesn’t want to press charges. Can they drop the case?”
The short answer is no. In Texas, the alleged victim does not control whether criminal charges are filed, pursued, or dismissed. That decision belongs to the prosecutor. And understanding why this is the case, and what it means for your defense, is essential if you are facing family violence charges anywhere in the Dallas-Fort Worth area.
"Deandra Grant Law – Criminal & DWI Defense handled my case with diligence and professionalism. Deandra Grant's reputation is stellar and now I know why. She has a team of individuals who provide quality service."
- N. Coulter
"Deandra Grant Law – Criminal & DWI Defense fights hard for their clients and is always willing to go above and beyond. They are the best firm for DWI cases in DFW and beyond. Definitely hire them to represent you in any pending cases."
- P. Williams
"Deandra Grant made a tough situation so much better. She listened to my concerns and helped me so much with my case. I would recommend her to anyone needing legal services."
- M. Haley
Why the Alleged Victim Cannot Drop the Charges
Criminal cases in Texas are brought by the State of Texas, not by the alleged victim. When someone calls 911 to report a domestic disturbance, they are reporting an alleged violation of state law to the government. Once law enforcement responds and makes an arrest, the case becomes The State of Texas v. [Defendant]. The alleged victim is a witness in that case. They are not a party to the prosecution.
This means the alleged victim cannot “drop the charges,” “decline to prosecute,” or “refuse to press charges” in any legally binding way. They can tell the prosecutor they do not wish to cooperate. They can express that the incident was a misunderstanding. They can write a letter, call the DA’s office, or show up in person to ask that the case be dismissed. The prosecutor will note their position but the prosecutor is not required to follow it.
Texas prosecutors routinely proceed with family violence cases over the objection of the alleged victim. They do this for several reasons: they believe the evidence supports the charge regardless of the victim’s wishes, they are concerned that the victim is being pressured or intimidated into recanting, or they have a policy of prosecuting all family violence cases that meet the evidentiary threshold. Many Texas counties, including Dallas and Collin County, have dedicated family violence prosecution units with exactly this mandate.
What Happens When the Alleged Victim Recants
Recanting means the alleged victim changes their original statement by telling the prosecutor or the court that what they originally told the police was inaccurate, exaggerated, or false. This happens frequently in family violence cases, and it does not automatically result in a dismissal.
When an alleged victim recants, the prosecutor will evaluate whether the remaining evidence is sufficient to prove the case beyond a reasonable doubt without the victim’s testimony. That remaining evidence may include:
- The 911 call recording which is often highly emotional and detailed, and which the prosecution can introduce as an “excited utterance” exception to the hearsay rule under Texas Rule of Evidence 803(2)
- Photographs of injuries taken by responding officers at the scene
- Body camera footage from the responding officers
- Statements the defendant made to the police at the scene (which is why you should never speak to the police without an attorney)
- Statements the alleged victim made to responding officers, which may be admissible as excited utterances even if the victim later refuses to testify
- Medical records if the alleged victim sought treatment
- Prior 911 calls or prior reports involving the same parties
If the prosecutor believes this evidence is strong enough to secure a conviction, even without the alleged victim taking the stand, the case will proceed. And in many family violence cases, the 911 call alone provides the prosecution with enough to go to trial.
Managing Partner
Partner & Criminal Division Chief
Criminal Trial Division
Criminal Trial Division
Associate Attorney
Of Counsel
Do Not Contact the Alleged Victim — This Cannot Be Overstated
This is where well-meaning defendants destroy their own cases. The most natural instinct after an arrest is to call your spouse, your partner, or the family member who made the accusation and try to talk things out. Do not do this.
Emergency Protective Orders
In Texas, when a person is arrested for family violence, the magistrate will almost always issue an Emergency Protective Order (EPO) under Texas Code of Criminal Procedure Article 17.292. This order typically prohibits the arrested person from communicating directly or indirectly with the alleged victim, going within a specified distance of the alleged victim’s residence or workplace, and committing further acts of family violence. An EPO is issued at the time of the magistrate’s hearing, often within hours of the arrest, and is effective immediately. It can last up to 61 days for a misdemeanor or up to 91 days if a deadly weapon was involved. Violating an EPO is a separate criminal offense.
Bond Conditions
Beyond the EPO, the judge who sets your bond will almost certainly impose a no-contact condition as part of your bond. Violating a bond condition can result in your bond being revoked and your being taken back into custody.
Witness Tampering
If the prosecution believes you contacted the alleged victim in an attempt to persuade them to recant, refuse to testify, or change their account of what happened, you can be charged with tampering with a witness under Texas Penal Code §36.05. Witness tampering is a third-degree felony, punishable by 2 to 10 years in prison. This charge is separate from and in addition to the underlying family violence charge. A defendant who started with a Class A misdemeanor family violence case can end up facing a felony witness tampering charge because they sent a text message asking their spouse to “tell the truth” or “let them know you don’t want to press charges.”
Even indirect contact (i.e. having a friend, family member, or third party relay a message) can constitute a violation of a protective order or a bond condition, and can support a witness tampering charge. The safest course of action is to have zero contact with the alleged victim, directly or indirectly, until your attorney advises otherwise.
Related Videos
Judge or Jury Trial?
Choosing a Criminal Defense Attorney
What Actually Leads to Dismissal in Family Violence Cases
If the alleged victim’s wishes alone won’t dismiss the case, what will? The answer is a defense strategy that systematically undermines the prosecution’s ability to prove the case beyond a reasonable doubt:
- Challenging the evidence. Was there probable cause for the arrest? Were the officer’s observations at the scene consistent with the allegations? Do the photographs actually show what the prosecution claims they show? Is the 911 call consistent with the physical evidence? If the state relies on forensic evidence (ex. DNA, toxicology, digital communications) our team has the scientific and technical training to evaluate it.
- Investigating the accuser’s motive. Was the accusation made during a custody dispute, a divorce proceeding, or an argument about finances? Does the accuser have a history of making false reports? Are there text messages, emails, or social media posts that contradict the accusation or reveal a motive to fabricate?
- Establishing self-defense. Texas Family Code §71.004 explicitly excludes defensive measures to protect oneself from the definition of family violence. If you were defending yourself from an attack by the alleged victim, that is a complete defense but it must be supported by evidence and presented effectively.
- Filing pretrial motions. Motions to suppress evidence obtained in violation of your constitutional rights, motions to exclude unreliable or prejudicial evidence, and motions challenging the sufficiency of the state’s case can all lead to dismissals or favorable plea resolutions before trial.
- Demonstrating the consequences to the prosecution. In some cases, presenting mitigation evidence such as the defendant’s employment, family responsibilities, lack of criminal history, and the disproportionate impact of a family violence conviction (including the permanent federal firearms ban and nondisclosure ineligibility) can persuade a prosecutor that a dismissal or reduction to a non-family-violence charge is in the interest of justice.
The Affirmative Finding: Why the Charge Label Matters More Than the Sentence
Many defendants focus on avoiding jail time. In family violence cases, the more important goal is often avoiding the affirmative finding of family violence. This is a formal designation entered by the court under Texas Code of Criminal Procedure Article 42.013 stating that the offense involved family violence. The affirmative finding is what triggers the permanent federal firearms ban under 18 U.S.C. §922(g)(9), the nondisclosure ineligibility, and the felony enhancement for future offenses.
This is why defense strategy in family violence cases must be focused on the designation, not just the disposition. A plea to a non-family-violence offense, such as a Class C assault by contact or a disorderly conduct charge, may carry a small fine and no jail time, but critically, it avoids the affirmative finding and the lifetime consequences that come with it. Negotiating for this type of resolution requires an attorney who understands the collateral consequences and can present a compelling case to the prosecutor for why the alternative charge is appropriate.
Case Results
Get Legal Help Immediately
If you have been arrested for family violence in the Dallas-Fort Worth area, do not assume the case will be dismissed because the alleged victim wants it dropped. It will not be that simple. And do not contact the alleged victim to discuss the case because that single act can transform a misdemeanor into a felony.
Deandra Grant Law has defended family violence cases throughout North Texas for over 30 years. With offices in Dallas, Fort Worth, Allen, Denton, Waco, and Rockwall, we serve clients in every major county in the DFW metroplex.
Call (214) 225-7117 or visit texasdwisite.com for a free consultation.
Firm Accolades
Better Business Bureaus
D Magazine
