Most people arrested for family violence assault focus on the immediate criminal consequences: the possible jail time, the probation, the fine. What they frequently do not understand until it is too late is that a separate, permanent legal designation is entered at the same time as any plea or finding of guilt: the family violence affirmative finding.
That finding is not part of the sentence. It is not probation. It is not a fine. It is a legal designation under Texas Code of Criminal Procedure Article 42.013 that, once made, cannot be expunged, cannot be sealed, and cannot be removed and it carries consequences in firearms law, future criminal exposure, professional licensing, immigration status, and child custody that persist for the rest of the defendant’s life.
What the Affirmative Finding Is
Article 42.013 of the Texas Code of Criminal Procedure requires the court to make an affirmative finding of family violence and enter that finding in the judgment if the evidence shows that the offense involved family violence as defined by the Texas Family Code. The finding is separate from the conviction itself.
The affirmative finding is triggered by the nature of the relationship and the offense and not by the severity of the conduct. A first-offense Class A misdemeanor assault family violence conviction will carry an affirmative finding the same as a felony conviction. The sentence can be probation, the fine can be minimal, and the defendant can walk out of the courthouse the same day but the affirmative finding is permanently in the record.
Deferred Adjudication Does Not Avoid the Finding
This is the most common and most costly misunderstanding in family violence cases: defendants and their families frequently believe that accepting deferred adjudication (which, for most offenses, means no conviction and a path to nondisclosure) avoids the serious consequences of a family violence case. It does not.
A plea of guilty or no contest in a family violence case, even one resulting in deferred adjudication, triggers the affirmative family violence finding. Deferred adjudication for family violence cannot be sealed through a petition for nondisclosure under Texas Government Code §411.074. Deferred adjudication for family violence cannot be expunged unless the case is ultimately dismissed through a pretrial diversion program that results in actual dismissal.
For practical purposes: a deferred adjudication plea in a family violence case is, for most of the consequences that matter most to clients, equivalent to a conviction.
Firearms: Permanent Loss Under Federal Law
Under Texas law (§46.04(b)): A person convicted of a Class A misdemeanor assault involving family violence is prohibited from possessing a firearm for five years after being released from confinement or completing supervision. After five years, Texas law allows possession.
Under federal law (18 U.S.C. §922(g)(9) — the Lautenberg Amendment): The federal prohibition is permanent. Anyone convicted of a “misdemeanor crime of domestic violence” is permanently prohibited from possessing, shipping, transporting, or receiving any firearm or ammunition. There is no five-year window. There is no restoration mechanism through ordinary channels. The prohibition is for life.
The federal definition of conviction is broader than Texas’s: a plea of guilty or no contest resulting in deferred adjudication in a family violence case is treated as a “conviction” for federal firearms purposes even though it is not a conviction under Texas state law. This is the dangerous gap that catches many defendants off guard. They complete deferred adjudication, receive their dismissal under state law, and believe their gun rights are intact but they are not under federal law.
Future Enhancement: The Next Arrest Is a Felony
Under §22.01(b)(2), any subsequent bodily injury assault against a family member, household member, or dating partner (regardless of who the victim is and regardless of how much time has passed) is elevated from a Class A misdemeanor to a third-degree felony if the defendant has a prior family violence conviction or deferred adjudication.
It applies to deferred adjudication. A prior deferred adjudication in a family violence case is sufficient to trigger the felony enhancement for a future family violence arrest.
The victim does not have to be the same person. A prior family violence assault against an ex-spouse can be used to elevate a current assault against a new dating partner to a felony. The relationship categories are what matter, not the specific victim.
Out-of-state convictions count. If the out-of-state conviction was for an offense with elements substantially similar to qualifying Texas offenses, it can be used for enhancement.
No Expunction or Nondisclosure
A family violence conviction, probation, or deferred adjudication cannot be expunged or sealed under Texas law. Texas Government Code §411.074, which governs petitions for nondisclosure, specifically excludes offenses involving family violence. The record (including the affirmative finding) is public and permanent, appearing on background checks conducted by employers, landlords, professional licensing boards, and anyone else with access to criminal records.
Immigration Consequences
For non-citizens, a family violence conviction (including a deferred adjudication) can trigger deportation proceedings and bar re-entry to the United States under federal immigration law. Federal immigration law treats qualifying domestic violence misdemeanor convictions as a basis for removal regardless of how the state characterized the offense or the plea outcome. This consequence should be evaluated with immigration counsel before any plea decision is made.
Child Custody and Professional Licensing
Family courts consider family violence findings when determining custody and visitation. A parent with a family violence affirmative finding faces a statutory presumption under Texas Family Code §153.004 that it is not in the best interest of the child for that parent to have unsupervised access if the finding involves the other parent.
Professional licensing boards (ex. nursing, medicine, law, real estate, teaching, peace officer certification) treat family violence findings as disclosable events that can result in license suspension, denial, or discipline proceedings.
Why the Plea Decision Matters More in Family Violence Cases Than Any Other
The convergence of these consequences (i.e. permanent firearms prohibition under federal law, no expunction or sealing, future felony enhancement, immigration exposure, custody impact, and licensing consequences) means that the plea decision in a family violence case has stakes far higher than in most other criminal matters. That is not a subtle distinction. It is a life-altering one that must be understood before any plea is entered.
Speak With Deandra Grant Law
Deandra Grant Law brings 30+ years of criminal defense experience and more than 500 trials to every case. We handle family violence defense at every stage and we provide honest, comprehensive counsel about every consequence of every plea decision before you make it.
Call (214) 225-7117 or visit texasdwisite.com for a confidential consultation.