Quick answer
An Affidavit of Non-Prosecution (ANP) is a sworn statement from a complaining witness — the alleged victim — asking the State not to prosecute the case. Texas law gives victims the right to be heard, but the prosecutor (not the victim) decides whether to dismiss. ANPs help dismiss cases far more often than people realize, but they are not magic words. Done wrong, they can hurt the defense or expose the affiant to perjury allegations.
In family violence and simple assault cases, the alleged victim often wants the case dismissed. Texas law does not give the victim that power directly — only the prosecutor can dismiss. But an Affidavit of Non-Prosecution, drafted carefully and presented strategically, gives the prosecutor a path to dismissal. We see ANPs work most of the time when they are paired with a credible mitigation package and a defense attorney who has built rapport with the prosecutor.
What's on this page
What an Affidavit of Non-Prosecution actually does
An ANP is a sworn statement, signed in front of a notary, from the alleged victim. It usually:
- Recants or qualifies the original complaint
- States the affiant does not wish to pursue prosecution
- Explains the circumstances surrounding the original report
- Identifies any factors that mitigate the alleged offense
Critically: the ANP does not cause dismissal. Under Article 56A.001 of the Code of Criminal Procedure, the victim has a right to confer with the prosecutor and have their views considered. But the decision belongs to the prosecutor. We have seen ANPs lead to dismissals; we have also seen prosecutors reject ANPs and proceed to trial without the cooperating witness.
When ANPs work — and when they do not
ANPs work most often in:
- First-offense family violence cases where there is no independent corroborating evidence (no 911 audio, no injuries on the body cam, no third-party witness)
- Simple assault cases between roommates or acquaintances
- Cases where the complaining witness was the primary aggressor or there is evidence of mutual combat
- Cases where the prosecutor is open to pretrial diversion with the ANP as part of the mitigation
ANPs are less effective in:
- Cases with serious injuries (broken bones, hospitalization)
- Cases involving children
- Cases with strong independent evidence — body-cam, photographs, third-party witnesses
- Cases where the defendant has prior family violence convictions
- Counties with strong "no-drop" policies on family violence
Texas family violence prosecutors are trained to expect ANPs and continue prosecution. They will subpoena the affiant, prepare for an uncooperative or hostile witness, and often introduce the affiant's prior statements as substantive evidence under the excited utterance or 803(2) exception to hearsay.
How to draft an ANP that the prosecutor will accept
The ANP should not be a defense attorney's draft signed by the victim. It needs to read like the victim's words. Critical elements:
- Factual detail: Specifics about the incident, the affiant's state of mind, what was said vs. what was reported.
- No recantation of unequivocal facts: If the affiant says "I was never hit" but body-cam shows visible injuries, the affidavit will not be credible. Better to say "the injury was an accident during a verbal argument that escalated" if that's true.
- Explanation of original report: What was happening, why the call was made, how the affiant felt at the time.
- Current relationship status: Whether the parties are still together, whether protective orders are needed, whether the affiant has fear of the defendant now.
- What the affiant wants: Dismissal, reduction, pretrial diversion, restitution, no contact — be specific.
- Counsel disclosure: Whether the affiant has been advised by a separate attorney (recommended in serious cases — defense counsel should never appear to coach the victim).
- Truthful, sworn, notarized: The affidavit must be truthful. Lying on an ANP is aggravated perjury under Penal Code §37.03.
Best practice: defense counsel does not draft the affidavit. The defense attorney can advise the complaining witness to consult separate counsel, who can draft on the affiant's behalf. This avoids witness-tampering allegations.
Risks for the complaining witness
Signing an ANP is not risk-free. The risks include:
- Perjury exposure: If the ANP contradicts the original statement and the affiant is not careful, the prosecutor can file aggravated perjury under §37.03 (third-degree felony).
- Witness-tampering allegations: If the defendant pressured the affiant to sign, both the defendant and (theoretically) the affiant face exposure under Penal Code §36.05.
- Loss of protective order: If the ANP indicates the affiant no longer wants a protective order, the order may not be issued or may be modified.
- CPS involvement: If there are children, an ANP recanting violence allegations can trigger CPS scrutiny.
We routinely recommend the complaining witness consult independent counsel before signing.
Alternatives if the ANP does not lead to dismissal
If the prosecutor will not dismiss despite the ANP, defense options include:
- Pretrial diversion: A contractual agreement with the prosecutor for the defendant to complete classes, counseling, or community service in exchange for eventual dismissal.
- Deferred adjudication: A plea structure that allows the defendant to complete probation without a conviction.
- Class C reduction: Reducing a Class A or B family violence assault to a Class C assault by contact (fine-only, no jail) — though the family violence finding still attaches.
- Trial: If the complaining witness will not testify, the State's case often weakens enough to justify proceeding to trial.
The right path depends on the strength of the State's independent evidence, the defendant's priors, and the local prosecutor's practice.
If your case is at this stage, do not wait for the State to make the next move.
Call (972) 370-5060 Email UsKey Texas terms
- Affidavit
- A written, sworn statement made under oath in front of a person authorized to administer oaths, usually a notary.
- Complaining witness
- The person alleged to be the victim of the offense. May or may not be cooperating with the prosecution.
- No-drop policy
- A prosecutorial office policy of not dismissing family violence cases at the request of the victim alone. Common in larger Texas counties.
- Excited utterance
- A hearsay exception under Texas Rule of Evidence 803(2) allowing certain statements made under the stress of a startling event to be admitted as substantive evidence — often used by prosecutors to introduce 911 calls when the victim recants.
Frequently asked questions
Can I drop the charges against my partner?
No — only the prosecutor can drop charges in Texas. As the alleged victim, you can sign an Affidavit of Non-Prosecution asking the State not to prosecute, but the decision belongs to the District Attorney's office.
Does signing an Affidavit of Non-Prosecution automatically dismiss the case?
No. An ANP gives the prosecutor information and a basis to dismiss, but the prosecutor may still proceed. Independent evidence — 911 calls, body-cam, injury photos — can support prosecution even without the victim's cooperation.
Can I be forced to testify against the defendant even after signing an ANP?
Yes. A subpoena compels appearance. The privilege against testifying against a spouse exists in Texas under Rule 504 of the Rules of Evidence, but it has exceptions for family violence under §504(b)(4).
Can the defense lawyer draft my Affidavit of Non-Prosecution?
Defense counsel should not draft your affidavit directly. Doing so creates witness-tampering risk. Best practice is to consult independent counsel — a lawyer hired by you, not by the defendant — who can advise you and draft on your behalf.
What happens if my Affidavit of Non-Prosecution contradicts what I said in my 911 call?
The prosecutor may introduce the 911 call as substantive evidence under the excited-utterance exception (Texas Rule 803(2)). The contradiction may be used to impeach you — and in extreme cases can lead to aggravated perjury charges. Be truthful in both the original report and the affidavit.
Will an ANP work in Collin County family violence cases?
Sometimes. Collin County's prosecutors do not have a formal no-drop policy, but they take family violence seriously. Pairing the ANP with a strong mitigation package — counseling, classes, no new offenses, time on bond without incident — increases the chance of dismissal or diversion.
How long does it take to dismiss a case with an ANP?
Varies widely. Some prosecutors review and decide within 30 days; others take 90 days or more. We follow up regularly and present additional mitigation as the case progresses to push toward dismissal.
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