Fort Worth Criminal Defense

Treatment without Labels: An Effective Program for Juveniles Charged with a Sex Crime in Tarrant County

Imagine this: You receive a call out of the blue from a detective telling you that he is investigating your 11-year-old son for sexually touching your 6-year-old niece. How do you protect your young son who is being charged with Aggravated Sexual Assault of a Child? How do you choose between helping your son and helping your niece? Is there any way to get them both help without prosecuting your son? Will your son be labeled a sex offender for the rest of his life? Is there any way for your extended family to work this out?

While this may seem far-fetched, it happens more than you think. Fortunately, there is now a program in Tarrant County that can help without destroying the life of either child involved. It is called Project SAFeR.

What is Project SAFeR?

Project SAFeR (which stands for Safety and Family Resiliency) is a program in Tarrant County designed to help youth with problematic sexual behaviors who are between the ages of 7-12. There are three components to the program: legal, supervision, and counseling. The program, which started in July 2015, was created through a collaborative effort of Lena Pope Home, Alliance for Children, Tarrant County District Attorney’s Office, Child Protective Services (CPS), Tarrant County Juvenile Services, and local law enforcement. The purpose of the program is to help the victim, young juvenile, and their families deal with the problem in an effective way so that both children may go on to lead productive lives.

What is Problematic Sexual Behavior?

Problematic sexual behavior is that which is goes beyond what is normal sexual development for a child’s age. It usually involves children who are quite a bit different in age or who are not considered equals due to maturity, size, or other factors. A child with problematic sexual behaviors will act out on another child who is not a willing participant, either through the use of force, threats, bribery, or some other type of coercion or persuasion. Problematic sexual behaviors interfere with normal, nonsexual, childhood interests and behaviors, and usually continue even after a child’s behavior has been discovered and reprimanded.

The Legal Component of Project SAFeR

Because kids under the age of 10 cannot be prosecuted for their actions in Texas, children between the ages of 7-9 who have problematic sexual behaviors, can be referred to the counseling program but will not be required to participate in the diversion or supervision components. For these children, a parent can contact Lena Pope Home in Fort Worth at 817-255-2500 for help (see below for more specifics on the counseling component).

For children between the ages of 10-12, law enforcement and/or CPS will likely be involved to some extent. Many times, these cases will be referred to Tarrant County Juvenile Services and the Tarrant County District Attorney’s Office Juvenile Unit.

In order to be eligible to participate in the legal, or diversion, component of Project SAFeR, the charged juvenile must be between the ages of 10-12. If a juvenile is older than 12, he will be ineligible for the diversion program. Other eligibility requirements for the program are:

• A multi-disciplinary team must decide that the case is appropriate for inclusion in the program based on the totality of the circumstances. This team screens cases for the program while they are still being investigated by CPS and law enforcement.
• The victim’s family must agree to the charged juvenile being in the program. If the victim’s family does not agree, this alone will make the juvenile ineligible.
• A risk assessment, which will be completed by the counselors involved in the program, must show the charged juvenile to be at a low risk to reoffend.

If all of these requirements are met, a juvenile’s case will be filed with the court by the prosecutor. The child will appear before a juvenile court judge and must admit to committing the offense. The judge will make a finding that there is enough evidence to find the juvenile guilty of the offense, but the judge will instead withhold judgement on the issue of delinquency and order the child into Project SAFeR.

If the juvenile successfully completes the supervision and counseling components of the program, the prosecutor will dismiss the case. If, however, the child is kicked out of the program, then he will return to court and will be found delinquent at that time and then will proceed to the disposition, or punishment, stage of the case. A juvenile who successfully completes Project SAFeR will, as a condition of the program, be eligible to have his record sealed upon his 16th birthday.

The Supervision Component of Project SAFeR

The supervision component of Project SAFeR is provided by Tarrant County Juvenile Services. If the child is allowed into the program, he will be assigned a juvenile probation officer who is a part of the Juvenile Offender Unit. The term of supervision will be up to 6 months in length. During that time, the juvenile must complete the counseling component of the program as well as go to school, not commit any new offenses, and obey his parents/guardians. The probation officer will check in on the juvenile, as well as check with his counselor and parents, on a regular basis while in the program.

The Sexual Counseling Component of Project SAFeR

The counseling piece of the program is provided by Lena Pope Home at their Fort Worth location. Both the child charged and at least one caregiver will be required to attend all counseling sessions while in the program. The counseling is once a week (on Monday nights) for 18 weeks.

The juvenile will attend a child’s group at the same time that his caregiver is attending a parents’ group each week. The two groups will be learning the similar material at the same time. So, for instance, during the week that the juvenile is learning the sexual behavior rules, his parent will be learning how to enforce those sexual behavior rules in the home. In addition to learning about sexual behavior rules and appropriate relationships, those in the program will also learn communication skills and stress relief strategies. Both the juvenile and parent must demonstrate that they have learned and are implementing the information taught in order to successfully complete the program. The counseling is provided free of charge to those in the program.

Outcomes and Benefits of Project SAFer

While this program has only been in existence in Tarrant County for a little over a year, it has been implemented in other parts of the country for many years. The program in Omaha, Nebraska, recently completed a 10-year follow-up study on those juveniles who completed their program. They found that of those who successfully completed the program, less than 2% committed a new sexual offense. This is a much lower reoffending rate than traditional sex offending treatment programs.

The majority of those who have been accepted into the Tarrant County Project SAFeR program have graduated. Many of those parents have indicated that the information they learned in the program not only helped them handle their children’s sexual behavior problems, but it also taught them to be better parents in general. The techniques and strategies taught in the counseling component have also been instrumental in helping parents to communicate better and have better relationships with their children. It has brought these families closer together.

Project SAFeR is taking a whole new approach to treating children with problematic sexual behaviors. It starts with NOT labeling or treating them as sex offenders. It approaches the problem from a family-focused point of view and treats it as a serious problem that the family can get through together, as opposed to treating the juvenile as if he is a sex offender who is doomed for the rest of his life. If your child is between the ages of 10-12 and is facing prosecution for a sex crime in Tarrant County, ask your attorney about whether Project SAFeR is the right approach for you and your family.

About the Author

Christy Dunn is a writer and attorney licensed to practice in Texas. She was a prosecutor for 15 years. The last five years of her prosecutorial career was spent in the Juvenile Division of the Tarrant County District Attorney’s Office. She has tried over 20 juvenile cases in Texas and multiple certification hearings. She was part of the multidisciplinary team that created a Project SAFeR.

Just the other day, I read something written by one of our local mayors calling for bail reform because a certain person had been released on what she believed was an insufficient bail amount. This got me thinking about our system of bail in Texas and the real purpose behind the system. I doubt I'll ever convince the mayor that we ought not to punish people before they've had their day in court, but I thought it best to lay out the history and purpose of bail in case she ever wants to know.

The purpose of bail in the criminal justice system has been convoluted throughout the years, leaving many people with a fundamental misunderstanding about what bail actually is and the purpose behind it. Often people think bail is just another form of punishment (i.e. "Let's lock him up and throw away the key!"), when in reality it should be the exact opposite. The use of bail allows a defendant to be released and have the ability to prepare the best defense possible for trial. At the moment that bail is set, the person is presumed innocent. So what exactly is bail? What is the overarching purpose? How is the amount of bail determined?

What is Bail?

Under both the United States Constitution and the Texas Constitution, generally, criminal defendants have a right to bail and to be free from excessive bail. Tex. Const. art. I §11, §13. With that, while all non-capital crimes are eligible for bail, bail can be denied in several situations under the Texas Constitution and it is at the judge or magistrate’s discretion whether to grant bail where defendant has been charged with capital murder. Tex. Const. art. I, §11; Bill of Rights; Judiciary Act of 1789.

Bail is the guarantee given by the defendant that he will appear at his court settings. Bail includes both bail bonds and personal bonds. Tex. Code Crim. Proc. Ann. Art. 17.01. A bail bond is a written undertaking by the defendant ensuring his appearance. Art. 17.02. There are a few different ways to go about getting a bail bond:

1. The defendant can have a family member or friend sign the bond as their surety, accepting responsibility for the amount if the defendant does not appear;
2. A defendant can go through a commercial bail bondsman and have them be their surety; or
3. The defendant can pay the court cash in the amount of the bond. Id.

A personal bond is when there is no surety and no money paid when the defendant is released and the defendant will be responsible for a set amount if they do not appear. Art. 17.03.

What is the Purpose of Bail?

Congress stated that, historically, the sole purpose of bail was to secure defendant’s presence in court. 110 H.R. 2286. The purpose remains the same, to reduce flight risk but also to give the defendant the best opportunity to prepare for trial. Stack v. Boyle, 342 U.S. 1 (1951). Essentially, the idea behind bail is that if a person puts down a chunk of money they are less likely to flee. Riverside v. McLaughlin, 500 U.S. 44 (1991). In no way should bail be a form of punishment for the defendant and the Eighth Amendment makes it clear that bail shall not be excessive. Further, being released on bail does not prove guilt nor affect the presumption of innocence. A person remains innocent until proven guilty when granted bail. United States v. Houston, 26 F. Cas. 379.

How is Bail Set in Texas?

In Texas, a court, judge, or magistrate setting bail should use their discretion under the Texas Constitution and the rules provided in Article 17.15 of the Texas Code of Criminal Procedure. The Code sets out 5 rules in determining bail for a defendant:

1. The bail set must be “sufficiently high” so as to reasonably ensure the defendant’s appearance in court.
2. Bail must not be an “instrument of oppression.” Which essentially means bail is not to be a form of punishment.
3. The nature and circumstances of the offense are to be considered.
4. The defendant’s ability to make bail will be considered.
5. The future safety of the community and victim of the alleged offense must be considered.

The court is also allowed to look to other factors including criminal history, family ties, and links to the community. Gonzalez v. State, 996 S.W.3d 350. If bail is set in an amount that the defendant cannot make, the court will hear evidence on that issue and will lower it if the amount was found improper or excessive under the rules and/or the Constitution. If the court refuses then the defendant can also appeal before trial. Id.

Bail in Tarrant County

If you were to compare the standard bail amounts from county to county across Texas for similar criminal allegations, you would probably find that Tarrant County is on the lower side. Johnson County and Parker County might set a higher bail amount for the same or similar case. This does not mean that Tarrant County's bail system needs to be reformed. Clearly, if Tarrant County began to experience more folks not showing up for court, then the bail might go up (and it does in each individual case, when the defendant proves himself to be unreliable in appearing for court). Before any public officials begin calling for reform in Tarrant County, I would suggest that we determine whether, in fact, the system is broken, or if, perhaps we are trying to subject a defendant to pretrial punishment with excessive bail.

If a juvenile (a child between the ages of 10-16) is arrested, that person is taken to a juvenile detention center instead of jail. In the juvenile justice system, there is no such thing as bail. There is no amount of money a parent can pay to get their child out of detention. Instead, a detention hearing will be held. This article will explain what detention hearings are, why you need an attorney, and what happens during those hearings.

What Is a Juvenile Detention Hearing in Texas?

According to the Texas Family Code Section 54.01(a), a detention hearing is required to be held within two business days after a juvenile has been detained. If the juvenile is detained on a Friday or Saturday, then the detention hearing is required to be held on the first business day. If, after the initial hearing, a child is kept in detention, then the law requires additional detention hearings to be held every 10 business days for as long as that juvenile is in custody. If a juvenile is detained, his attorney can request an additional hearing sooner than 10 business days.

The purpose of these hearings is for a judge to determine whether the court should continue to detain that child or release him to a parent or another responsible adult while decisions about that juvenile’s case are made.

Family Code Section 54.01(e) requires that a juvenile be released at a detention hearing unless the judge finds that the juvenile:

• is likely to abscond,
• has inadequate supervision,
• does not have an adult to bring him back to court,
• is a danger to himself or the public safety, or
• has previously been adjudicated for an offense and is likely to commit another offense if released.

Does My Child Need an Attorney for the Juvenile Detention Hearing?

The short answer is yes. Section 51.10 of the Family Code gives a juvenile the right to an attorney at all important stages of the process, including the detention hearing. This section goes on to say that if a child is not represented by a lawyer at a detention hearing and is detained, the court must immediately either appoint him an attorney or order the family to hire one.

The court will only appoint a lawyer if the judge determines that the family is indigent based on the court’s financial guidelines. Most families won’t meet this standard. If the court does appoint an attorney, the court will determine who that person is. This is done by looking at who is next up on the list. Whether your child gets a good attorney, or a bad one, is decided by the luck of the draw.

You can, however, hire a lawyer to represent your child before the first, or any, detention hearing. If you hire an attorney, you will get to decide who that is. You can pick out one that you feel comfortable handling such an important matter for your child.

Why Should I Hire a Juvenile Defense Attorney as Opposed to Getting a Court-Appointed One?

It is best if you hire a lawyer for your child prior to the initial detention hearing. If the court appoints an attorney, that person will meet you and your child for the first time at the detention hearing. During that hearing, or minutes before, will be the first time that the appointed lawyer will hear anything about your child’s case. In some instances, you won’t have an opportunity to talk to the appointed attorney until after the detention hearing.

On the other hand, if you hire a lawyer, you will have a chance to meet with that person before the hearing. This will give the attorney an opportunity to learn about the case before walking into the courtroom for the detention hearing. This, in turn, will allow the lawyer to be better prepared to explain to the judge why she should release your child.

Additionally, an attorney is better equipped to represent your child if they are involved with the case from the very beginning. Many times, things are said during an initial detention hearing that may later become relevant to the underlying case and your child’s defense. If you wait until later in the process to hire an attorney, that person may never hear that relevant information. It is much more difficult for a lawyer to come into a case that is already ongoing than it is to be involved from the beginning.

What Happens During Juvenile Detention Hearings in Tarrant County?

The detention hearing is an informal hearing. Generally speaking, the following people will be present for it: the judge, the juvenile, an intake probation officer, a prosecutor, and a defense attorney. There may also be others present, such as a therapist, victim’s assistance officer, or a CPS worker.

After the judge warns the juvenile about his rights, the probation officer will summarize the reasons why the juvenile is in detention. This may include a summary of the police report and/or any probation violations that the juvenile is alleged to have committed. The probation officer will also detail the child’s history with the juvenile system.

Then, the judge will give the juvenile, the parent, the attorneys, and anyone else involved an opportunity to speak. Under Family Code Section 54.01(g), nothing the juvenile says during the detention hearing can be used at any later hearing. The judge may also have questions for one or more of the participants. Then, the judge will make his decision.

Conclusion

In conclusion, a detention hearing is an informal method for a judge to determine whether a juvenile who has been detained should continue to be held in custody or released. Because of this purpose, the hearing is held relatively quickly after an arrest and then is repeated on a regular schedule for as long as a child is in detention. An attorney is required to represent the child at these hearings and should be retained as soon as possible.

About the Author

Christy Dunn is a writer and attorney licensed to practice in Texas. She was a prosecutor for 15 years. The last five years of her prosecutorial career was spent in the Juvenile Division of the Tarrant County District Attorney's Office. She has tried over 20 juvenile cases in Texas and multiple certification hearings. She was part of a multidisciplinary team that created a juvenile diversion program for youth with problematic sexual behaviors.

Texas Hate Crimes

One of the highest-profile hate crimes in the nation to occur in recent years involved the unprovoked massacre of a historic South Carolina church carried out by Dylann Roof.  Shortly, thereafter, there was the largest mass shooting in American history that occurred in Orlando at a gay night club.  These terrible incidents opened up the flood gates for a national dialogue on the real prevalence and impact of hate crimes in the nation.

In the state of Texas, hate crimes are no less of an issue than any other area of the nation, and their investigation remains a top priority for investigators and social interest groups working against them. The available statistics on hate crime frequency in Texas illustrate the ongoing need for officials to continue their heavy investment of effort in working against discrimination-motivated victimization based on race, religion, gender, sexual orientation, and all other personal identifiers.

Legal Definition of Hate Crime in Texas

Under Article 42.014 of the Texas Code of Criminal Procedure, a hate crime occurs if the:

defendant intentionally selected the person against whom the offense was committed or intentionally selected property damaged or affected as a result of the offense because of the defendant's bias or prejudice against a group identified by race, color, disability, religion, national origin or ancestry, age, gender, or sexual preference. 

The FBI defines a hate crime as "a criminal offense against a person or property motivated in whole or in part by an offender's bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity."

Out of all the FBI Civil Rights program's priorities, hate crimes are the highest on the program's list. The FBI considers those who perpetuate and preach intolerance and hatred to be catalysts for terrorism, and the Bureau treats them as such.

The Texas Hate Crimes Act, recorded in Chapter 411.046 of the Texas Government Code, categorizes any crimes that are perceivably motivated by "prejudice, hatred, or advocacy of violence" as hate crimes. Like the FBI's classification determiners, these crimes are linked to any prejudices directed at gender, gender identity, religion, disability, race, ethnicity, sexual orientation, disability and religion.

The following statistics collected by the Texas Department of Public Safety are the most recent available for comprehensive insight into hate crime prevalence, locations, offenders, victims and offenses in the state of Texas.

What is the Penalty for a Hate Crime Offense in Texas?

In a criminal case, if the judge or jury makes an affirmative finding that the offense is a Hate Crime, Section 12.47 of the Texas Penal Code outlines the punishment enhancement.  For offenses other than a Class A Misdemeanor or First Degree Felony, the underlying offense is enhanced to the next higher category of offense. For instance, if the offense is a Class B Misdemeanor and the jury returns an affirmative finding that the offense was motivated by prejudice toward the victim's race, the offense is increased to a Class A Misdemeanor.  First Degree Felonies are not enhanced under Section 12.47 because they already carry a penalty range of 5-99 years in prison. If the underlying offense is a Class A Misdemeanor, it will remain a Class A Misdemeanor but the minimum jail sentence is increased to 180 days. Enhancements for hate crimes are limited to offenses under Title 5 of the Texas Penal Code, or Section 28.02, 28.03, or 28.08, Texas Penal Code."

Texas Hate Crime Volume

The Texas DPS reported that there were 166 reports of hate crimes in 2014. The hate crimes involved 198 offenders and 190 victims. The most common bias was race and ethnicity, the second most common bias was sexual orientation, and the third most common bias was religiously-motivated. The 2014 figure on hate crime reports was a 23 percent increase from the 2013 figure.

Texas Hate Crime Locations

The DPS reported that hate crimes most commonly occurred in residential homes, at 30.4 percent. Next to residences, the second-most frequent places for hate crimes to occur were roads/highways/streets/alleys, at 16.1 percent. The third most frequent areas for hate crimes to occur were parking lots and garages, at 12.5 percent.

Texas Hate Crime Offenders

The DPS hate crime report's data on offenders showed that the 198 hate crime offenders were 67.7 percent white, 18.7 percent black, 1.5 percent Asian, 1.0 percent multiracial, and 11.1 percent unknown. The information on Texas hate crime offender demographics was analyzed with the understanding that hate crimes can be perpetuated by different offenders sharing the same race.

Texas Hate Crime Victims

The DPS report's data on hate crime victims categorized the victims based on the following categories: individual, business, financial institution, government, religious organization, society/public, "other", and unknown. Individuals were the most frequent victim type, at 84.2 percent. The second most frequent victim type was "business", at 8.4 percent, followed by government and religious victims at 3.2 percent.

Specific Texas Hate Crime Offenses

The most common type of hate crime offense was simple assault, at 15 percent. The second most frequent hate crime offense was vandalism, at 25.7 percent, followed by intimidation at 18.6 percent.

History of Nationwide Hate Crime Investigation by the FBI

The FBI has historically investigated hate crimes in which the offending party was motivated by the national origin, religion, or ethnicity of the victim. The role of the FBI in hate crime investigation was notably increased after the Civil Rights Act of 1964. In the past, investigators were restricted to cases in which the victim of a hate crime was engaging in an activity under federal protection.

After the 2009 Hate Crimes Prevention Act of 2009, investigators gained a freedom to investigate hate crimes without as much red tape. In addition, the 2009 act also gave investigators clearance to freely investigate hate crimes committed out of a bias against the sexual orientation, gender, disability or gender identity of the victim.

Conclusion

Though the time and manpower investment in hate crime investigation remains heavy, the need for vigilance remains high. According to the FBI's 2015 report, there were 5,479 hate crime incidents nationwide in 2014; these incidents involved 6,418 offenses to the Uniform Crime Reporting (UCR) program, creating 6,727 victims nationwide. Though the figure was down from the 2013 rate, in which there were 5,928 incidents and 6,933 offenses, the issue remains a top priority for investigators in Texas and the nation at large all year round.

What is the Lautenberg Amendment?

Senator Frank Lautenberg was the chief sponsor of this amendment. The purpose behind this amendment is to keep firearms out of homes where a domestic violence relationship exists. Lautenberg presented it with the idea that domestic violence and firearms are a deadly combination and enacting this amendment would lessen the likelihood of a victim to die during a domestic violence episode. 142 Cong Rec S 11872. Additionally, since there was already a firearm ban in place for felony convictions, this Amendment combats the devastating loophole that previously allowed persons with misdemeanor convictions of domestic violence to fall through the cracks and be permitted to own firearms. United States v. Hayes, 555 U.S. 415.

When Does the Lautenberg Amendment Apply?

The Lautenberg Amendment will not have any impact until a person has a misdemeanor conviction of domestic violence. 18 U.S.C. § 922(g)(9). That is, a misdemeanor that

“has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.”

18 U.S.C. § 921(33).

A defendant will not be considered convicted unless they were represented by an attorney or “knowingly and intelligently” waived that right and the case was prosecuted at a jury trial or the defendant “knowingly and intelligently” waived that right by a guilty plea or otherwise properly waived that right. Id.

If you have been charged with a qualifying misdemeanor conviction, the amendment has no impact on you until you have received a final conviction. However, if you are subject to a protective order, the Gun Control Act and the State of Texas separately provide that you cannot use, possess, or transfer firearms. 18 U.S.C. § 922(d)(8); Tex. Fam. Code § 85.022(b)(6); Tex. Pen. Code § 46.04(c).

In Texas, if you have disposed of your case through deferred adjudication, which is not a final conviction, and you successfully complete the deferred adjudication, the amendment will not impact you since the statute requires a conviction. 18 U.S.C. § 921(33). Additionally, the conviction element of this statute will not be satisfied if the conviction is expunged, set aside, or the defendant has been pardoned. Id.

What Impact Does the Lautenberg Amendment Have on the Military Defendant?

Prior to the Lautenberg Amendment, 18 U.S.C. § 925(a)(1) provided a military and law enforcement exception to the Gun Control Act. The Lautenberg Amendment contains no similar exception.

What this means for the military defendant that gets a conviction is that his service could be compromised since they can no longer use, possess, or transfer a firearm. This conviction can impact their ability to re-enlist, cause a transfer to a military occupational specialty (MOS) that doesn’t require the handling of firearms, and affect the ability to be deployed. Many servicemembers that receive a domestic violence conviction will be processed for administrative separation.

According to the Supreme Court, What Cases are Considered Misdemeanor Convictions of Domestic Violence?

In Voisine v. United States, the Supreme Court clarified that the federal firearm ban under the Lautenberg Amendment applied to every case where the underlying conduct was an act of domestic violence, regardless of whether the state court made an affirmative finding of domestic violence (or family violence in Texas). This means that persons with misdemeanor convictions anywhere from a Class C simple assault* to a Class A assault with or without a domestic violence finding are banned from using, possessing and transferring firearms if their victim was one with whom they had a domestic relationship.

Voisine v. United States dealt with two domestic violence-related cases from Maine where both defendants’ previous convictions were based on reckless conduct, not intentional or knowing conduct. Thus, they argued that the Lautenberg Amendment didn’t apply to them. The Supreme Court ruled that the firearm ban did apply to them for two reasons:

1. Reckless use of force is use of force the same as if it was intentional or knowing; and
2. The legislative history and plain language of the statute lead to such a conclusion.

Looking to the statutory definition of an applicable misdemeanor conviction provided above, there is no specific mental state required. The definition provides that the Amendment applies to any misdemeanor under federal, state, or tribal law that was committed by a person through use of physical force against a victim with whom they have a domestic relationship.

*Class C is the same level as a traffic ticket.

Texas Specific Firearm Bans for Domestic Violence Convictions

In Texas, a person who has been convicted of a misdemeanor involving family violence cannot possess or transfer a firearm or ammunition for 5 years after they are released from confinement or after they have completed and been released from community supervision following the conviction. Tex. Pen. Code § 46.04(b).

The Texas Family Code defines family violence as “an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault.” Tex. Fam. Code § 71.004. Additionally, under Section 22.01 of the Texas Penal Code an assault involving the person’s family or household occurs if the person causes bodily injury to another, threatens a person with “imminent bodily injury,” or causes physical contact with someone that they know or should know would find “offensive or provocative.” From these definitions you can see that a misdemeanor conviction of domestic violence in Texas expands the qualifying convictions beyond those that qualify under the Lautenberg Amendment.

If a person is convicted of a misdemeanor offense of family violence the court must notify them that it is against the law for them to possess or transfer firearms or ammunition. Tex. Code Crim. Proc. art. 42.0131. Additionally, if a defendant decides to enter a plea of guilty or nolo contendere for a misdemeanor involving family violence the court must, before accepting the plea, admonish the defendant with the following:

“If you are convicted of a misdemeanor offense involving violence where you are or were a spouse, intimate partner, parent, or guardian of the victim or are or were involved in another, similar relationship with the victim, it may be unlawful for you to possess or purchase a firearm, including a handgun or long gun, or ammunition, pursuant to federal law under 18 U.S.C. Section 922(g)(9) or Section 46.04(b), Texas Penal Code. If you have any questions whether these laws make it illegal for you to possess or purchase a firearm, you should consult an attorney.”

Tex. Code Crim. Proc. Art. 27.14.

Texas law does not require the defendant to surrender firearms or ammunition once the possession is prohibited. Neither does Texas law specifically authorize or require the removal of firearms or ammunition from the scene of a domestic violence incident.

In short, Texas law provides a prohibition of gun possession for five years after release from confinement or probation in more circumstances than under the Lautenberg Amendment. However, if your conviction is also a qualifying conviction under the Lautenberg Amendment then your right to possess a firearm is indefinitely prohibited. If you find yourself in that situation your only option to restore your firearm rights is to request a full pardon and restoration of civil rights in your pardon paperwork.

Are You Currently FacingDomestic Violence Assault Charges in Tarrant County?

Whether you have already been convicted or are currently facing charges of assault it is extremely important to know the heavy consequences that are attached to convictions where the underlying conduct is considered domestic violence. There are many misconceptions out there on whether federal firearm ban applies to a specific assault case. It is important that you know for a fact whether it applies to you so that you don’t risk violating federal law. If you are facing charges for an offense involving family violence under Texas law, contact our criminal defense team and schedule a free consultation to discuss and determine what consequences you are facing and whether the federal and/or Texas firearm ban applies to you.