It’s one of the most common calls I get. Someone was arrested for assault family violence in Collin County — a spouse, a boyfriend or girlfriend, a family member — and by the next morning, the person who called 911 wants the whole thing to go away. The question is always some version of the same thing: “She doesn’t want to press charges. So it’s over, right?”
Not quite. In Texas, the person who called the police doesn’t get to drop the charge. That doesn’t mean their wishes don’t matter — sometimes they end up mattering a lot. Here’s how it actually works.
The State Files the Charge — Not the Complainant
A criminal case is The State of Texas v. the accused. The person who was allegedly assaulted is called the complainant, and legally, they’re a witness — not a party to the case. They don’t file the charge, and they can’t withdraw it.
Only the prosecutor can dismiss an assault family violence charge. In Collin County, that’s the District Attorney’s Office, and family violence cases get a lot of attention there. A complainant who says “I don’t want to press charges” has told the State what they want. The State decides what happens next.
What an Affidavit of Non-Prosecution Actually Does
When a complainant wants the case dropped, the usual first step is signing an affidavit of non-prosecution — a sworn statement saying they don’t want the case to go forward. People often expect it to end the case. It doesn’t.
In my experience, the Collin County DA’s Office mostly doesn’t care about the affidavit itself. Prosecutors see this all the time. In family violence cases, it’s common for the person who called 911 to take back what they said or ask for the case to be dropped — and prosecutors often assume it’s because that person is scared, depends on the accused for money, or is being pressured. So they still move forward with the case as they see fit most of the time. What the affidavit does do is put the complainant’s position in the file.
- It doesn’t dismiss the case. Only the prosecutor can do that.
- It doesn’t lift a protective order or bond conditions. A no-contact order stays in place until a court changes it.
- It doesn’t erase what was already said. The 911 call, the body cam video, and statements made at the scene still exist.
- It doesn’t stop a subpoena. The State can still subpoena the complainant to testify.
When the Complainant Won’t Cooperate — or Doesn’t Show Up
After an affidavit is signed, the DA’s Office will usually try to reach the complainant directly, by phone or by mail. If those efforts don’t work, that’s usually when the needle really starts to move.
Here’s why. The Constitution gives the accused the right to confront the witnesses against them. If the complainant doesn’t come to court, the State generally can’t just read their written statement to the jury or have the officer repeat what they said in a formal interview. Unless the prosecutor can get the evidence in some other way, the State is often forced to dismiss the case on the day of trial when the complainant doesn’t show up to testify.
The State does have ways to try to work around a missing witness:
- The 911 call. A call made to get help during an emergency can sometimes come in without the caller testifying.
- Statements at the scene. Things said in the heat of the moment, while the person was still upset, may be admissible through the officer — especially if they’re on body cam.
- What the accused said. Anything the accused told the officers at the scene can be used — no complainant needed.
- Other evidence. Photos of injuries, medical records, other witnesses, jail calls, and prior 911 calls to the same address.
And even when the State goes forward without the complainant, it never looks good for the prosecution when the person they say was assaulted didn’t even bother to show up.
One important warning: if the accused pressures or threatens the complainant — or otherwise wrongfully keeps them from coming to court — the law allows the State to use the complainant’s statements anyway. The accused forfeits the right to object. Offering the complainant something or coercing them to stay away is also a separate crime: in a family violence case, witness tampering is at least a third-degree felony. That’s one of the first things I make sure my clients understand.
The Emergency Protective Order
For a lot of people, the protective order hurts before the criminal case ever does. When someone is brought before a magistrate after a family violence arrest, the magistrate can issue a magistrate’s order for emergency protection — often called an EPO.
In my experience, Collin County magistrates issue EPOs in roughly 80% of family violence cases. Most of the time, the magistrate does it on their own or because law enforcement asks. It’s very rare for the complainant to be the one requesting it.
An EPO can:
- Bar any contact with the complainant or members of the household — in some cases, even through other people
- Keep the accused away from the home, the complainant’s workplace, and the children’s school or daycare — even if the accused owns or rents the home
- Prohibit possessing a firearm, and suspend a license to carry
- Override an existing custody or visitation order while it’s in effect
An EPO generally lasts 61 to 91 days — and 91 to 121 days if a deadly weapon was involved. Violating it is a separate criminal charge, punishable by up to a year in jail. And the complainant can’t give permission to ignore it. If the complainant invites the accused home, the accused can still be arrested for violating the order. The court can modify an EPO, but only after a hearing and only if the change won’t put the protected person at greater risk. Separately, violating a no-contact bond condition can get the bond revoked — and the accused sent back to jail.
Why the Outcome Matters So Much Later
A family violence case can follow someone long after it’s over. How it ends — dismissal, deferred adjudication, or conviction — makes a real difference.
How a Family Violence Case Can End
| Dismissal | Deferred Adjudication | Conviction | |
|---|---|---|---|
| Final conviction? | No | No, if completed | Yes |
| Counts as a prior if there’s another family violence charge? | No | Yes — it can make the next one a felony | Yes — it can make the next one a felony |
| Can the record be cleared later? | Usually eligible for expunction | No — family violence can’t be sealed through nondisclosure | No |
| Firearm restrictions? | No | No automatic ban under Texas law, though the judge can prohibit firearms as a condition — federal law is less settled | Yes — at least a 5-year ban under Texas law, and often a lifetime ban under federal law |
That middle column surprises people. Deferred adjudication avoids a final conviction, but for family violence, it still counts as a prior for enhancement — and it can never be sealed. That’s why a dismissal is worth fighting for, and why I look hard at whether the State can actually prove its case before anyone talks about a plea. When a case is dismissed, I can often help clear the arrest with an expunction.
There’s also a middle ground. I routinely see family violence cases in Collin County resolved with a plea to a lesser offense that doesn’t carry a family violence finding — such as disorderly conduct or Class C assault by contact. That kind of outcome can avoid many of the long-term problems in the table above. One option that isn’t on the table: pretrial diversion isn’t available for assault cases in Collin County.
Firearms are where deferred adjudication gets the most complicated. Under Texas law, deferred isn’t a conviction, so the Texas five-year ban doesn’t apply. Federal law looks to whether the state treats the case as a conviction, which points the same way — but lawyers and courts don’t all agree on how that plays out for family violence, and background checks sometimes flag these cases anyway.
When It’s a Felony From the Start
Most assault family violence cases are a Class A misdemeanor, punishable by up to a year in county jail and a fine of up to $4,000. But some are felonies from day one:
- A prior family violence conviction — including a prior deferred adjudication or an out-of-state conviction — makes a new assault a third-degree felony (2 to 10 years in prison).
- Impeding breath or circulation — choking or strangulation, or blocking someone’s nose or mouth — is a third-degree felony, even on a first offense.
- Both together — impeding breath with a prior family violence conviction — is a second-degree felony (2 to 20 years).
- An assault on someone the accused knows is pregnant is also a third-degree felony.
Felony cases go to district court, through a grand jury, and the stakes go up across the board — including bond, protective orders, and what a plea would mean.
How I Handle a Family Violence Case
- When the complainant calls me. It happens a lot. I let them know I handle many of these cases, and I ask them to have the person who was arrested contact me once they’re out or available. Then I walk through the process with my actual client — not the complainant.
- The evidence. I get the 911 recording, the body cam and dash cam video, photos, and the police report, and I look closely at what was actually said, when, and to whom. That’s often what decides whether the State can prove its case without the complainant.
- The protective order and bond conditions. I regularly file motions to modify bond conditions and EPOs — especially when a client has been kept out of their own home. I’ve written more about getting bond conditions changed so a client can return home.
- Getting the case ready for trial. Many of these cases are decided by whether the State can put on its case when it counts. I prepare every case as if it’s going to trial.
- The outcome. I’ll tell you straight what I see — including whether a dismissal is realistic, and what deferred adjudication or a plea would really mean down the road.
Frequently Asked Questions About Dropping Assault Charges in Texas
Can the victim drop assault charges in Texas?
No. In Texas, only the prosecutor can dismiss a criminal charge. The complainant is a witness, not a party to the case. Their wishes can still matter — especially if they don’t want to testify — but the decision belongs to the State.
What happens if the victim doesn’t show up to court?
Because of the right to confront witnesses, the State often can’t prove its case without the complainant’s testimony unless it can use evidence that falls under an exception, like certain 911 calls or statements made at the scene. When the complainant doesn’t appear for trial, the case is often dismissed — but not always.
Does an affidavit of non-prosecution get the case dismissed?
Not by itself. In Collin County, prosecutors usually move forward regardless of the affidavit. It puts the complainant’s position on record, and the DA’s Office will usually try to contact the complainant directly after it’s filed.
Can the protected person let the accused come home if there’s an emergency protective order?
No. A protected person can’t give permission to violate an emergency protective order. The order stays in effect until it expires or a court changes it, and violating it is a separate criminal charge.
Is assault family violence a felony in Texas?
Usually it’s a Class A misdemeanor. It becomes a third-degree felony with a prior family violence conviction or deferred adjudication, or if it involved impeding breath or circulation, and a second-degree felony if both apply.
Can a family violence charge be sealed in Texas?
Not through an order of nondisclosure. Family violence offenses are excluded from nondisclosure, even after deferred adjudication. If the case is dismissed, the arrest is often eligible for expunction.
Serving All of Collin County
I defend clients throughout Collin County, including:
Facing a Family Violence Charge in Collin County?
A family violence arrest moves fast — the protective order usually starts at the bond hearing, and the evidence starts disappearing right away. I handle every case myself, and I’ll tell you straight where you stand. The consultation is free, and I personally read and respond to every message, usually within a few hours.