Affidavit of Non-Prosecution in Texas Family Violence Cases
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Texas Bar verified. Reggie London (Texas Bar No. 24043514) and Njeri London (Texas Bar No. 24043266) are the co-founding partners of L and L Law Group, PLLC — based at 5899 Preston Rd, Suite 101 in Frisco, Texas (Collin County), with many 5-star Google reviews, and available 24/7 for criminal defense consultations.
Table of Contents
What the document actually says
An Affidavit of Non-Prosecution is a sworn statement (notarized or witnessed) typically containing:
- Identification of victim/complainant
- Identification of defendant
- Brief reference to the underlying incident
- Statement that victim wishes case not to proceed
- Often: statement that victim was not seriously injured, doesn't fear defendant, or wants reconciliation
- Acknowledgment that prosecutor has discretion to proceed
- Victim signature, witness signature, notarization
The defense attorney typically prepares the document. Victim signs voluntarily. Document is presented to prosecutor.
What it does NOT accomplish
The affidavit is not:
- Not a court order to dismiss. Victim doesn't have authority to dismiss criminal cases.
- Not legally binding on prosecutor. District Attorney has independent prosecutorial discretion.
- Not a recantation of the original complaint. Doesn't say the original allegation was false.
- Not a get-out-of-court for defendant. Defendant still must appear and respond to charges.
Many counties continue prosecuting family violence cases even with affidavits filed. The state can subpoena the victim as witness; victim can be compelled to testify or risk contempt.
What it actually accomplishes
The affidavit is influential in several practical ways:
Influences plea negotiations. Prosecutor seeing victim doesn't want to proceed often offers more favorable plea terms. Cases that would have plead to standard probation may instead plead to deferred adjudication or dismiss.
Affects trial strategy. Cases where victim doesn't cooperate are harder to prove. Hearsay rules typically prevent the original 911 call or police report from being introduced without victim testimony. The state's case weakens substantially.
Documents victim's actual position. If the case proceeds and victim testifies differently than the affidavit, defense has prior inconsistent statement for cross-examination. Documents the victim's genuine view at a particular time.
Supports case dismissal. Combined with other factors (no injury, defendant's clean record, treatment enrollment), affidavit can support outright dismissal in some counties.
The procedural reality
What typically happens after an affidavit is filed:
Step 1: Defense attorney prepares affidavit and obtains victim signature.
Step 2: Affidavit submitted to prosecutor (typically as part of broader defense package).
Step 3: Prosecutor evaluates case considering: severity of incident, defendant's prior record, victim's safety, case strength without victim testimony, county practice.
Step 4: One of three outcomes:
- Dismissal: Especially in counties with progressive prosecutors and minor first-offense cases
- Reduced plea: Most common outcome. Class C reduction, deferred adjudication, or pretrial diversion
- Continued prosecution: Particularly for serious incidents, repeat offenders, or counties with strict policies
The right approach: defense counsel coordinates with victim (typically through her own attorney to avoid conflict) to ensure the affidavit is voluntary, accurate, and effective.
The Marsy's Law and witness compulsion considerations
Several legal frameworks affect the affidavit's effectiveness:
Texas victim rights: Victims have statutory rights to be heard, to confer with prosecutor, to have views considered. Affidavit formalizes these views.
Witness compulsion: Even if victim files affidavit, state can subpoena her as witness and compel testimony. Refusal can result in contempt.
Spousal privilege: Texas Rules of Evidence 504 provides spousal communication privilege but not adverse spousal testimony privilege in family violence cases. Spouse can be compelled to testify.
Hearsay rules: Without victim testimony, the state's evidence is often hearsay. Excited utterance and other exceptions allow some statements but typically insufficient for conviction.
These rules combine to make affidavit-based defense most effective in cases without strong physical evidence (no injuries, no recordings, no third-party witnesses). Cases with body-cam evidence of the actual incident are harder to defeat through victim non-cooperation alone.
Texas Penalty Group 3 Charges by Weight
| Weight | Offense | Range |
|---|---|---|
| Under 28 g | Class A misdemeanor | Up to 1 year county jail + $4,000 |
| 28-200 g | 3rd degree felony | 2-10 years |
| 200-400 g | 2nd degree felony | 2-20 years |
| 400 g+ | 1st degree enhanced | 5-99 years/life + $100K |
Have a Texas legal question?
Call L and L Law Group for a free, confidential consultation. We handle criminal defense across Collin, Dallas, Denton, and Tarrant counties.
Call (972) 370-5060In our practice defending Texas criminal cases, we have represented clients in Collin, Dallas, Denton, and Tarrant County criminal courts on the full Texas Penal Code and Health & Safety Code spectrum. Reggie's prosecutor background in Dallas County means we know the State's evidentiary playbook; Njeri's trial-trained motion practice anchors the suppression-driven defense work.
Key Legal Terms
- Penalty Group
- Texas Health & Safety Code § 481.102-481.105 classification of controlled substances by abuse potential and accepted medical use. Determines weight tiers and punishment ranges.
- Article 38.23
- Texas Code of Criminal Procedure exclusionary rule. Evidence obtained in violation of any federal or Texas constitutional or statutory provision is inadmissible against the accused.
- Aggregation
- Texas H&S § 481.002(5) rule that the total weight of any controlled substance, including adulterants and dilutants, counts toward the offense weight tier.
- 3g Offense
- CCP Article 42A.054 list of offenses ineligible for judicial probation and requiring 50% sentence served before parole eligibility (formerly Article 42.12 § 3g).
- Pretrial Diversion
- Pre-charge alternative under CCP Article 32.02 in which the prosecution agrees to dismiss charges upon successful completion of conditions (counseling, community service, restitution).
Frequently Asked Questions
Will the affidavit get my case dismissed?
Sometimes, but not automatically. Prosecutors decide. Affidavit influences but doesn't require dismissal. Combined with other defense factors, dismissal is achievable in many first-offense, low-injury cases.
Can the victim be punished for filing one?
No, generally. Filing an affidavit is the victim's right. The state cannot punish victim for refusing to cooperate. However, victim who lies under oath in affidavit (false statement) could potentially face perjury charges. Truthful affidavits are protected.
What if the victim changes her mind later?
Common scenario. Victim may sign affidavit during reconciliation period and change mind later. Subsequent change of position is admissible. Defense work coordinates with victim through proper channels (her own counsel typically) to avoid undue influence allegations.
Is the affidavit the same as recanting?
No. Affidavit says victim doesn't want prosecution. Recantation says original allegation was false. Recantation is more powerful but legally riskier (can support false report charges if the original complaint was made knowingly false).
Can I have my own affidavit written?
Defense attorneys typically prepare. Victim should ideally consult with separate counsel before signing if there are conflict-of-interest issues. Some Texas counties have victim advocates who can advise on whether affidavit serves victim's interests.
