When Assault Against a Family Member Becomes a Felony in Texas

Quick answer: In Texas, assault causing bodily injury to a family or household member or dating partner is generally a Class A misdemeanor. It becomes a third degree felony when there is a qualifying prior family violence conviction, when the allegation is impeding the person’s breathing or circulation, or when the accused knew the person was pregnant. A prior plus impeding breathing is a second degree felony. If you were charged in McKinney or Collin County, the section number on your paperwork tells you which of these the State is alleging.

The jump from a misdemeanor to a felony isn’t only about prison time. It changes which court hears your case and how the rest of your life looks if you’re convicted. Here’s how the statute draws those lines.

Where does a family assault charge start?

Penal Code Section 22.01(a) describes three kinds of assault:

• Causing bodily injury: intentionally, knowingly or recklessly causing bodily injury to another, including your spouse
• Threats: intentionally or knowingly threatening another with imminent bodily injury
• Offensive contact: intentionally or knowingly causing physical contact you know or should reasonably believe the other person will regard as offensive or provocative

Under Section 22.01(b), the first is a Class A misdemeanor unless something raises it. Under Section 22.01(c), the other two are generally Class C misdemeanors, with listed exceptions. That’s the starting point for most assault family violence questions.

What raises it to a felony?

Each row below is a different allegation, and the State has to prove what makes it that level.

Allegation and statute	Level	Punishment range
Threat or offensive contact, 22.01(a)(2), (a)(3), (c)	Class C misdemeanor, with listed exceptions	Fine up to $500
Bodily injury, 22.01(a)(1), (b)	Class A misdemeanor	Up to 1 year in jail, fine up to $4,000
Bodily injury, with a qualifying prior family violence conviction, 22.01(b)(2)(A)	Third degree felony	2 to 10 years, fine up to $10,000
Impeding breathing or circulation by pressure on the throat or neck or by blocking the nose or mouth, 22.01(b)(2)(B)	Third degree felony	2 to 10 years, fine up to $10,000
Bodily injury to a person the accused knows is pregnant, 22.01(b)(8)	Third degree felony	2 to 10 years, fine up to $10,000
Two or more bodily injury assaults within 12 months, 25.11	Third degree felony	2 to 10 years, fine up to $10,000
Impeding breathing or circulation, with a qualifying prior, 22.01(b-3)	Second degree felony	2 to 20 years, fine up to $10,000
Deadly weapon used, causing serious bodily injury to a family or household member or dating partner, 22.02(b)(1)(A)	First degree felony	5 to 99 years or life, fine up to $10,000

The ranges come from Penal Code Chapter 12. Other enhancements and offense-specific rules can change what applies to a particular case.

What counts as a qualifying prior?

This is where old cases come back. The earlier offense must have been committed against someone whose relationship is described by the Family Code’s definitions of a dating relationship, family or household, and it must fall under a listed statute. Those include Penal Code Chapter 22, Chapter 19, Sections 20.03, 20.04, 21.11 and 25.11, and some protective order violations based on family violence.

Then read Section 22.01(f). It says a defendant has been previously convicted if the defendant was adjudged guilty or entered a plea of guilty or no contest in return for a grant of deferred adjudication, regardless of whether the sentence was ever imposed or whether the sentence was probated and the defendant was later discharged from community supervision.

That’s the part people miss. Someone can finish deferred adjudication, believe the case is behind them, and still have a qualifying prior for this purpose. A conviction from another state for an offense with substantially similar elements counts too.

Why does impeding breathing matter so much?

Because it doesn’t need a prior. Section 22.01(b)(2)(B) makes assault a third degree felony if it’s committed by intentionally, knowingly or recklessly impeding the normal breathing or circulation of the blood by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth.

So the same night can produce a misdemeanor or a felony depending on a few words in a statement or a police report. We look closely at exactly what was said, by whom, when, and what any photos and medical records actually show.

What about continuous violence against the family?

Section 25.11 makes it a third degree felony to engage two or more times, within a period of 12 months or less, in bodily injury assault against a person in one of those relationships. No prior conviction is needed. The incidents can be charged together for the first time.

There’s a jury rule to know. Jurors don’t have to agree unanimously on the specific conduct, the exact date or the county of each incident. They must agree unanimously that it happened two or more times within the 12 months. The firm’s case results include Continuous Violence Against the Family: Dismissed. Past results do not guarantee future outcomes.

What should you do if you’re facing one of these?

Read the charging paperwork for the actual section. Don’t assume the charge is minor because nobody was hurt badly, and don’t assume an old deferred case is gone. And think about the first plea offer in terms of the second case. A guilty or no contest plea today can become the qualifying prior later, and it can carry an affirmative finding of family violence and firearm consequences.

Chiles McGuire Criminal Law defends family violence cases in McKinney and across Collin County. Attorney Patrick McGuire is a former Dallas County felony prosecutor, and we prepare every case as though it will go to trial. Call for a free consultation at 214-628-7292. What you pay at the start covers all legal services, including a trial, for each case.