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  • Writer's pictureBrian Foley

Montgomery County Criminal Defense Attorney - Affidavits of Non-prosecution in Family Violence Cases

Montgomery County Criminal Defense Attorney - Brian Foley - Board Certified in Criminal Law.

An affidavit of non-prosecution is a document that I frequently get asked about in the practice of Assault Family Member cases. These cases can range from a Class C that is punishable by a fine only, or up to First Degree felony if the case involves the use of a deadly weapon causing serious bodily injury to a family member.

So what is an Affidavit of non-prosecution?

An affidavit is a document that someone creates and swears that the facts contained in the document are true. Typically it will be signed in front of a public notary making it a "notarized" document. If you would like to get an affidavit notarized you can do this at just about any bank. You don't even need a savings or checking account at the bank to go into the lobby and request the assistance of a notary.

An affidavit of non-prosecution is a sworn document that is delivered to the District or County Attorney's office handling a family violence case. The document informs the District or County Attorney that the victim or complainant in the case does not want to see the case prosecuted. There is no state wide official form for an affidavit of non-prosecution. There are no formal requirements and there is no specific law that governs their creation or delivery of an affidavit of non-prosecution to a District Attorney's Office. Because of this, there is no official legal effect to an Affidavit of non-prosecution. I say there is no official legal effect because there is a practical effect to filing an affidavit of non-prosecution and depending on the jurisdiction and the prosecutor the case could be dismissed in part because of the filing of an affidavit.

Does the DA have to dismiss a case if the victim files an affidavit of non-prosecution?

The short answer is no. There is no legal requirement to dismiss a case because an affidavit of non-prosecution has been filed. In fact it is typically not filed in the official papers of the court record or with the county or district clerk. It may be offered at a trial but even then it could be subject to a hearsay objection.

The reason a case is not automatically dismissed when an affidavit of non-prosecution is executed is that the parties in a criminal case are the State of Texas and the defendant. The victim is not legally a party to a criminal case and has no say in the prosecution of the case.

Art. 56A.054.  STANDING.  A victim, guardian of a victim, or close relative of a deceased victim does not have standing to:
(1)  participate as a party in a criminal proceeding; or
(2)  contest the disposition of any charge.

Chapter 56 A of the Texas Code of Criminal Procedure provides for the various victim's rights in Texas. One such right is to be given updates on the case and to be allowed to give a victim impact statement after punishment has been assessed by a judge or jury.

You should be careful not to request or make repeated attempts to get a victim to sign an affidavit of non-prosecution because this could be used against you later in court under the theory of forfeiture by wrongdoing. This could potentially waive objections under the 6th amendment right to confrontation, making it possible for the District Attorney's office to prove the case without the testimony of the alleged victim.

If you've been charged with Assault Family Member call an experienced criminal defense attorney so that you can start working on your defense.


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