In Texas, an assault family violence charge with a previous conviction is prosecuted as a third-degree felony, carrying 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 offense would normally be a Class A misdemeanor handled in county court with a one-year ceiling on jail time. The prior conviction moves the case to district court and roughly multiplies the exposure, and it also sets off a chain of consequences for firearms, child custody, and your ability to ever clean up your record.
Which Prior Convictions Trigger the Felony Enhancement
Not every old case counts. The prior has to be a conviction for a specific type of violent offense committed against someone who qualifies as a family member, household member, or dating partner. Qualifying priors include any assault or violent offense under Chapter 22, 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 A conviction from another state qualifies if the elements are substantially similar to one of the Texas offenses on that list.
The most common surprise is deferred adjudication. Many people believe that completing deferred adjudication probation and getting the case dismissed means it is gone. For enhancement purposes, it is not. A guilty plea or no-contest plea that led to deferred adjudication counts as a prior conviction under the assault statute, even if a sentence was never imposed and the case was later dismissed.3State of Texas. Texas Penal Code 22.01 – Assault Defendants frequently learn this during a second arrest.
The current alleged victim does not have to be the same person as the prior victim. A prior conviction involving an ex-spouse still enhances a new charge brought over a current girlfriend, a roommate, or a co-parent. Prosecutors look at the overall history of violence across relationships.
Who Counts as a Family or Household Member
The enhancement reaches only cases where the current alleged victim fits one of three relationship categories defined in the Texas Family Code. Family includes anyone related to you by blood or marriage, a former spouse, a foster child or foster parent, or the other parent of your child.4Justia Law. Texas Family Code 71.003 – Family Household members are people who live in the same home, whether related or not.5State of Texas. Texas Family Code 71.005 – Household A dating relationship is a continuing or past romantic or intimate relationship, judged by its length, nature, and the frequency of contact; a casual acquaintance or ordinary social contact does not qualify.6State of Texas. Texas Family Code 71.0021 – Dating Violence
These definitions are broad. Ex-spouses, current roommates, co-parents who never married, and on-and-off romantic partners all fall inside them.
Prison, Probation, and What Judges Actually Do
A third-degree felony conviction carries 2 to 10 years in the Texas Department of Criminal Justice and 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 carries weight beyond the sentence itself and affects parole timing, firearm rights, and later custody proceedings.
Community supervision is technically available for a third-degree felony, but a prior domestic violence conviction makes judges considerably less inclined to grant it. When probation is ordered, the conditions are stricter than those a first-time offender would face. The court must order a $100 fine payable to a local family violence center and will typically require a Batterer Intervention and Prevention Program; the defendant pays the program’s full cost if the court finds they can afford it, and can also be ordered to cover up to a year of the victim’s counseling.7State of Texas. Texas Code of Criminal Procedure 42A.504 – Community Supervision for Certain Offenses Involving Family Violence
When the Punishment Range Climbs Higher
If you have another final felony conviction in your background beyond the qualifying domestic violence prior, the habitual offender statute pushes the exposure further. A defendant tried for a third-degree felony with one previous 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.8State of Texas. Texas Penal Code 12.42 – Penalties for Repeat and Habitual Felony Offenders Two prior felonies push the range to 25 years to life.
That stacking matters in practice. Someone with both a prior family violence conviction (which made the current charge a felony) and a separate prior felony (which triggers the habitual enhancement) is looking at far more time than the base 2-to-10 range suggests. Prosecutors in repeat-offender cases routinely plead these enhancements.
Continuous Violence as an Alternative Theory
Prosecutors have a second route to a third-degree felony that does not require an old conviction at all. Continuous violence against the family makes it a third-degree felony to commit two or more qualifying assaults against family members, household members, or dating partners within a 12-month window.9State of Texas. Texas Penal Code 25.11 – Continuous Violence Against the Family The two incidents do not need to involve the same victim, do not need to have occurred in the same county, and do not need to have resulted in any prior charge or arrest.
Prosecutors sometimes use this charge instead of the enhanced assault charge, particularly when the earlier conviction is old or vulnerable to legal challenge. The penalty range is identical: 2 to 10 years and up to a $10,000 fine.
One boundary worth knowing: a first-offense assault that involved choking, strangling, or otherwise impeding the person’s breathing or blood flow is already a third-degree felony on its own, with no prior conviction needed.3State of Texas. Texas Penal Code 22.01 – Assault If strangulation is also alleged in your current case, the state has two independent paths to a felony conviction, and attacking the prior does not defeat the strangulation theory.
Firearm Ban: Texas Says Five Years, Federal Law Says Forever
A family violence conviction creates firearm problems at both the state and federal level, and the two sets of rules do not line up. Under Texas law, a person convicted of a Class A misdemeanor assault involving a family member 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 that five-year window, Texas state law allows possession again.
Federal law does not. Under the Lautenberg Amendment, a person convicted of a misdemeanor crime of domestic violence is permanently barred from possessing any firearm or ammunition, with no expiration.11Office of the Law Revision Counsel. 18 USC 922 – Unlawful Acts A separate provision bans possession for life when the conviction is a felony. Texas permitting possession again after five years does nothing to override the federal lifetime prohibition, and possessing a firearm in violation of federal law is a separate federal felony. Any family violence conviction, misdemeanor or felony, effectively ends your legal right to own a gun.
Effect on Child Custody and Visitation
Family violence findings reshape custody. Under the Texas Family Code, credible evidence of a pattern of family violence creates a rebuttable presumption that naming the offending parent as sole managing conservator, or giving that parent 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 the burden shifts to you to change its mind.
Beyond that, a court cannot appoint joint managing conservators where credible evidence shows a history or pattern of family violence by one parent against the other parent, a spouse, or a child. A rebuttable presumption against unsupervised visitation also applies.12State of Texas. Texas Family Code 153.004 – History of Domestic Violence or Sexual Abuse Courts can still allow access when visits would not endanger the child, but typically with conditions attached: supervised visitation, sobriety requirements during visits, or completion of a batterer intervention program. A protective order issued within two years before the custody filing weighs heavily in the court’s analysis.
You Cannot Seal or Expunge a Family Violence Conviction
The permanence is the part people underestimate. Texas provides two mechanisms for cleaning up a criminal record: expunction, which destroys the record, and nondisclosure, which seals it from public view. Expunction is available only in narrow circumstances, generally when the case ended in dismissal, acquittal, or was never charged. A conviction takes it off the table.
Nondisclosure orders are categorically unavailable for any offense involving family violence. That holds whether the offense was a misdemeanor or felony, and whether or not you received deferred adjudication. A family violence offense anywhere on your record, including one resolved by deferred adjudication, also blocks nondisclosure of other unrelated offenses. The practical result is that a family violence conviction shows up permanently on background checks for employment, housing, and professional licensing.
The only realistic path to clearing a family violence arrest is if the case was dismissed or ended in a not-guilty verdict, which can make you eligible for expunction. Even then, the process requires filing a petition; it does not happen on its own.