In Texas, assault on a family or household member by impeding breath or circulation is a third-degree felony on a first offense, punishable by 2 to 10 years in prison and a fine up to $10,000.1State of Texas. Texas Penal Code Section 22.01 – Assault Unlike most assault charges in Texas, no prior conviction is needed to make it a felony. The consequences reach well past any sentence: a permanent firearm ban, a conviction that cannot be sealed from background checks, and, for non-citizens, almost certain deportation.
What the State Has to Prove
Under Texas Penal Code § 22.01(b)(2)(B), the prosecution must prove three things: that you caused bodily injury to another person, that the person was a family member, household member, or someone you had a dating relationship with, and that you impeded that person’s normal breathing or blood circulation by applying pressure to the throat or neck or by blocking the nose or mouth.1State of Texas. Texas Penal Code Section 22.01 – Assault
The required mental state is intentional, knowing, or reckless. Recklessness is the lowest rung and the one that catches defendants off guard: it means you were aware your actions created a substantial risk of impeding someone’s breathing and acted anyway. The state does not have to show planning or specific intent to choke.
The statute focuses on the act itself, not the result. There is no requirement that the victim lost consciousness, suffered bruising, or needed medical care. The offense is complete the moment breathing or circulation was impeded, even briefly.
Who Counts as a Family or Household Member
The felony enhancement only applies if the alleged victim fits one of the categories defined by the Texas Family Code. “Family” covers people related by blood or marriage, former spouses, and parents who share a child regardless of whether they ever married.2State of Texas. Texas Family Code FAM 71.003 “Household” covers people living in the same home, related or not.3State of Texas. Texas Family Code Section 71.005 Current and former dating partners are included separately. The categories are drawn broadly enough that most domestic situations qualify, including roommates with no romantic relationship.
If the state cannot establish the relationship, the felony charge under § 22.01(b)(2)(B) fails. The conduct could still be charged as misdemeanor assault, but the gap between the two in consequences is large.
Punishment for a First Offense
A third-degree felony carries 2 to 10 years in the Texas Department of Criminal Justice and an optional fine of up to $10,000.4State of Texas. Texas Penal Code Section 12.34 – Third Degree Felony Punishment A judge can grant community supervision instead of prison, but probation in these cases typically comes with strict terms: a batterer intervention program, no-contact orders, drug and alcohol testing, and community service hours.
When the Charge Becomes a Second-Degree Felony
Any prior conviction for assaultive conduct against a family or household member bumps the charge to a second-degree felony.1State of Texas. Texas Penal Code Section 22.01 – Assault The prior does not have to involve strangulation. A previous family violence assault, aggravated assault, sexual assault, or continuous violence against the family all qualify.
A second-degree felony carries 2 to 20 years in prison and a fine up to $10,000.5State of Texas. Texas Penal Code PENAL 12.33 An old conviction from a different county, even one from years ago, is enough.
The Affirmative Finding of Family Violence
When a court determines that an assaultive offense involved family violence, it must enter an “affirmative finding of family violence” in the judgment.6State of Texas. Texas Code of Criminal Procedure CRIM P Art. 42.013 That notation stays on your record permanently and drives most of the collateral consequences you’ll live with.
The biggest one: an affirmative finding of family violence makes you permanently ineligible for an order of nondisclosure, the Texas process that seals a conviction from most background checks. Family violence offenses are categorically excluded.7Texas Courts. An Overview of Orders of Nondisclosure Even deferred adjudication, where the judge never formally enters a conviction, does not escape this. The finding blocks sealing regardless.
Bond and Protective Orders
Expect strict pretrial conditions. Magistrates in family violence cases routinely impose no-contact orders, firearm surrender, GPS ankle monitoring, curfews, and drug or alcohol testing. Texas law specifically authorizes GPS monitoring as a bond condition in family violence cases, and the defendant usually pays the monitoring costs, which run several hundred dollars a month and continue until the case ends.8State of Texas. Texas Code of Criminal Procedure CRIM P Art. 17.49
Violating a bond condition is itself a crime under Texas Penal Code § 25.07. A first violation is a Class A misdemeanor; if the violation involves an assault or if you have two or more prior violations, it becomes a third-degree felony.9State of Texas. Texas Penal Code PENAL 25.07 A single text to the alleged victim, even one she asked for, can produce a new charge stacked on the original.
The alleged victim can also seek a civil protective order under Texas Family Code Chapter 85. Standard protective orders last up to two years, but because this is a felony-level family violence offense, the court can issue one that exceeds two years with no statutory ceiling.10State of Texas. Texas Family Code Section 85.025 – Duration of Protective Order If you are incarcerated when it would otherwise expire, it automatically extends to one or two years after your release depending on the length of your sentence. A protective order can require you to stay away from the alleged victim’s home, workplace, and children’s school, cut off all communication, vacate a shared residence, and surrender firearms.
How These Cases Are Prosecuted
Strangulation often leaves little to no visible injury. Up to half of victims show no external bruising. That does not translate into weak cases. Prosecutors rely on the alleged victim’s statements made close to the incident, 911 recordings, photographs of redness or swelling taken under enhanced lighting, and medical documentation of symptoms like voice changes, difficulty swallowing, or petechiae (burst blood vessels in the eyes or face). A forensic nurse examiner’s report documenting throat tenderness or reported symptoms is hard to shake on cross.
Many Texas counties also follow “no-drop” policies: the state proceeds even if the alleged victim later recants or refuses to cooperate. The decision belongs to the prosecutor, not the complainant. Prior statements, scene photographs, and 911 audio can carry the case without live testimony. Assuming the charge will disappear if the alleged victim stops cooperating is a common and costly mistake.
Defenses That Target the Charge
The strongest defenses attack the specific elements. If the evidence does not clearly show that breathing or circulation was actually impeded, the felony may not stand. A defense attorney may argue that any contact with the neck was incidental to a broader struggle, not an act of impeding the airway, especially when there is no medical evidence of strangulation symptoms and only the complainant’s account.
Self-defense is available in Texas if you reasonably believed force was immediately necessary to protect yourself from the other person’s use or attempted use of unlawful force, and the force you used was proportional. Juries can be skeptical of self-defense in family violence cases, particularly where there is a size disparity.
Challenging the relationship element is another route. If the person doesn’t fit the Family Code definitions, the felony enhancement fails, though the state can still proceed on misdemeanor assault.
Plea negotiation is common. Any plea that keeps the family violence designation triggers the affirmative finding and its lifelong consequences, so the goal in many negotiations is a resolution that removes that designation. Whether that’s realistic depends on the facts and the prosecutor.
Firearm Ban
A conviction here triggers a permanent federal firearm prohibition. Under 18 U.S.C. § 922(g)(1), anyone convicted of a crime punishable by more than one year in prison cannot possess any firearm or ammunition.11Office of the Law Revision Counsel. 18 US Code 922 – Unlawful Acts A third-degree felony with a 2-to-10-year range clearly qualifies. Probation does not avoid the ban; the conviction itself is enough.
This is federal, so it applies nationwide regardless of any state-level restoration of rights. Possessing a single round of ammunition after a felony conviction is a separate federal offense carrying up to 15 years. Texas has a process for restoring some state firearm rights after a felony, but the federal ban stays in place unless the conviction is expunged or pardoned, and expungement is generally unavailable for a family violence felony.
CPS and Custody
An arrest for this offense often triggers a report to the Texas Department of Family and Protective Services, especially if children were in the home. Officers responding to family violence calls are trained to note children at the scene, and that note typically produces a CPS referral regardless of whether any child was directly harmed.
The CPS investigation runs separately from the criminal case. The agency evaluates whether the children are safe and can require safety plans, supervised visitation, or removal of the accused parent from the home. If CPS concludes a child was endangered, it can petition the family court for temporary managing conservatorship, which effectively removes the child from the parent’s custody.
A felony family violence conviction weighs heavily in custody and visitation decisions. Texas family courts consider a parent’s history of family violence under the best-interest standard, and a strangulation conviction is strong evidence against unsupervised access. In serious cases, particularly with multiple incidents or violence toward a child, the conviction can support termination of parental rights.
Immigration Consequences for Non-Citizens
For non-citizens, the stakes are even higher. Federal law makes any noncitizen deportable who is convicted of a “crime of domestic violence” after admission.12Office of the Law Revision Counsel. 8 USC 1227 – Deportable Aliens This offense qualifies: it involves violence against a family or household member and includes physical force as an element.
Because the offense carries a potential sentence over one year, a conviction can also be classified as an “aggravated felony” for immigration purposes if the actual sentence imposed, including any suspended time, is one year or more. An aggravated felony eliminates most forms of relief, including asylum and cancellation of removal. Even a fully suspended 365-day sentence can trip this wire. A non-citizen facing this charge needs a criminal defense attorney and an immigration attorney working together; a plea that looks favorable on the criminal side can be catastrophic on the immigration side.
Long-Term Record, Licensing, and Housing
Because this conviction cannot be sealed, it appears on every criminal background check for the rest of your life.7Texas Courts. An Overview of Orders of Nondisclosure That includes background checks run by employers, landlords, licensing boards, and volunteer organizations.
Professional licensing boards in healthcare, education, law, and finance routinely deny or revoke licenses based on felony convictions involving violence. Many applications ask about pending charges, so the arrest itself can create problems before any conviction. Housing is similarly affected. Most apartment complexes run background checks, and a felony family violence conviction is often an automatic disqualifier. Federal housing programs restrict eligibility for applicants with violent felony records. Stable housing can be hard to find for years after the case ends.