Domestic Violence Charges and Affidavit of Non-Prosecution in Texas

Like charges for all violent crimes, domestic violence charges in Texas and elsewhere in the United States are a serious matter. Domestic violence charges are typically supported by statements from family members who were the targets of that violence or were direct witnesses to it. Prosecutors often rely on those statements as the primary source of evidence in their cases against perpetrators.

Under certain circumstances, family members or witnesses may desire to recant or change their statements, particularly if arresting officers have exaggerated details or otherwise mischaracterized the events that preceded domestic violence charges. Plano domestic violence defense lawyer Andrew Peveto has assisted family members and others to prepare affidavits of non-prosecution to alert prosecutors that the evidence in their case is not as strong as they expect it to be. We caution victims of domestic violence and other family members to consider their actions very carefully before they submit a Texas affidavit of non-prosecution; but when an affidavit is appropriate, we will help clients to prepare and file an affidavit that protects both them and the accused party to the fullest extent possible.

Competing Interests and Affidavits of Non-Prosecution

There are competing interests in every situation where a domestic violence victim is considering an affidavit of prosecution.

  • The prosecutor may try to dissuade a victim from filing the affidavit. The prosecutor can still try a domestic violence case even if a victim has filed an affidavit of non-prosecution. Nonetheless, the affidavit can weaken the prosecutor’s case against the accused party.
  • The accused party’s attorney will be able to prepare a better defense if the victim files an affidavit of non-prosecution. That attorney, however, should never represent the victim or have any say in the victim’s decision to file an affidavit of non-prosecution.
  • The victim’s attorney needs to review all statements and other communications from the victim before completing an affidavit of non-prosecution form to protect the victim from facing impeachment at trial or potential charges of perjury.

How to File an Affidavit of Non-Prosecution in Texas

There is no set form or format of an affidavit of non-prosecution in Texas. A prosecutor’s office may have a generic form that only expresses a victim’s desire that a case should be dismissed or his or her intention not to testify against the accused party at trial. A generic form rarely convinces a prosecutor to drop a case, particularly if the prosecutor has other admissible evidence to convict the accused party (e.g. medical records, tapes of 911 calls, other witness statements, etc.).

In all cases the affidavit must be signed by the victim and attested by a notary public before it is submitted into the case file. If the circumstances do warrant a dismissal of the case, a victim’s attorney can prepare a more thorough affidavit of non-prosecution that goes beyond the generic wording of the form that a prosecutor might provide. The victim’s attorney is also better able to negotiate with the prosecutor and defense attorney with respect to how to dispose of the case.

How a Texas Affidavit of Non-Prosecution Can Be Used

A victim of domestic violence can always inform a prosecuting attorney that the victim does not desire to testify against the accused party. The victim is not obligated to file an affidavit of non-prosecution in order to decline to testify. The prosecuting attorney will likely request an affidavit in order to protect the prosecutor’s office against allegations that it did not pursue parties that were charged with criminal domestic violence. In this situation, an affidavit benefits no person other than the prosecutor.

If a domestic violence victim has a legitimate reason to refrain from testifying against an accused party, the better practice is for that victim to retain his or her own attorney to prepare an affidavit that is specific to the matter at hand and that goes beyond the terms in any generic form affidavit of non-prosecution that a prosecutor might provide. That specific affidavit will give the prosecutor the protection that his or her office wants while establishing stronger reasons for the prosecutor to drop the case altogether.

Call the Peveto Law Office to Prepare a Texas Affidavit of Non-Prosecution

Preparing and filing an affidavit of non-prosecution in Texas can have serious consequences, both in the case at hand and in subsequent matters involving the same parties. Defense attorney Andrew Peveto in Plano is sensitive to the many conflicting forces that can affect the affidavit.

Please consult with one of our attorneys at Peveto Law Office about the legal implications and the reasons to prepare, file, and use an affidavit of non-prosecution in a Texas domestic violence case.

Additional Resources:

  1. TCDLA.com, Affidavit of Non-Prosecution, http://www.tcdla.com/Images/TCDLA/StateForms/PretrialMotions/Affidavit%20for%20Non-Prosecution.rtf
  2. dallascounty.org: Dallas County District Attorney Family Violence Division. https://www.dallascounty.org/department/da/family_violence.php