When Dating Leads to Arrest in Texas: Dating Violence Under Texas Family Code §71.0021

Posted on September 2, 2021 by Michael Lowe.

In Texas, romance that erupts into physical violence between two people who are married or live together is considered domestic violence that can form the basis of some serious criminal assault charges. For more, read our earlier discussions in:

Family Violence in Texas: Crimes based upon Domestic Violence – It’s More Than a Fight That Turns Physical; and
More Women Arrested for Domestic Assault in Dallas with The First Battered Men’s Shelter in The Country?

Texas Dating Violence Charges

However, Texas criminal law extends farther than a romantic relationship where the couple cohabitates, and also makes “dating violence” illegal. Allegations of dating violence can result in civil law consequences (like protective orders entered by a judge) as well as criminal assault charges where the accused can face serious jail time.

Statistically, dating violence happens most often among teens and young adults who are, or have been, in romantic relationships here in the Lone Star State. According to the National Coalition Against Domestic Violence, seventy-five percent (75%) of Texas’ 16-24-year-olds have either experienced dating violence or know another young person who has.

This does not mean that Texas prosecutors focus solely upon this age group when pursuing criminal charges based upon dating violence. Adults of all ages, even media notables and celebrities, can face arrest based upon dating relationship incidents. See, e.g., Johnny Manziel, Domestic Violence Allegations: 5 Lessons.

The Criminal Act of Dating Violence: Texas Family Code §71.0021

The Texas Legislature has passed a specific criminal statute that addresses domestic violence outside marriage as Texas Family Code §71.0021, entitled “Dating Violence,” which provides:

“Dating violence” means an act, other than a defensive measure to protect oneself, by an actor that:

(1) is committed against a victim or applicant for a protective order:

(A) with whom the actor has or has had a dating relationship; or

(B) because of the victim’s or applicant’s marriage to or dating relationship with an individual with whom the actor is or has been in a dating relationship or marriage; and

(2) is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the victim or applicant in fear of imminent physical harm, bodily injury, assault, or sexual assault.

Tex. Fam. Code §71.0021(a).

Notice that under this definition, it is not only an actual physical interaction between the two people, but a “threat that reasonably places the victim or applicant in fear ….” of harm or injury that can form the basis of a dating violence allegation.

Threats can get you arrested.

Defining a Dating Relationship Under Texas Criminal Law

So, what is dating, anyway? The statute itself provides a definition of “dating relationship” in these cases:

For purposes of this title, “dating relationship” means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature.

The existence of such a relationship shall be determined based on consideration of:

(1) the length of the relationship;

(2) the nature of the relationship; and

(3) the frequency and type of interaction between the persons involved in the relationship.

Tex. Fam. Code §71.0021(b).

Of importance, not every relationship can be considered a “dating relationship” for purposes of an assault charge. The Legislature was careful to include the following limitation in its definition of a “dating relationship” in Tex. Fam. Code §71.0221(c) (emphasis added):

A casual acquaintanceship or ordinary fraternization in a business or social context does not constitute a “dating relationship” under Subsection (b).

Some relationships are excluded by definition as a dating relationship under the law.

From a criminal defense perspective, each case must be evaluated on its own particular circumstances to determine whether or not someone is – or was — dating as that is defined in Tex. Fam. Code §71.0021(b).

Proving Up a Dating Relationship

Sometimes things are not so clear, and if the two people were not in a “dating relationship” then charges brought under this statute cannot stand. Under Texas law, the prosecutor has the responsibility to establish a “dating relationship” with admissible and authenticated evidence.

Consider the following:

The state’s case must demonstrate that the relationship was more than “just friends,” but there does not need to be proof of any sexual involvement. Under Texas law, you can be dating without having sex.

As the Texas Court of Criminal Appeals has explained:

“A dating relationship is a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature.” Sanchez v. State, 499 S.W.3d 438, 441 (Tex. Crim. App. 2016).

The state has to show that either a romance existed at the time of the incident, or that there was a romance between the two in the past. The two can have absolutely no romantic feelings for each other and the law can still move forward on charges based upon a “dating relationship.”

As Sanchez explains, relying upon an unpublished opinion from the Dallas Court of Appeals several years ago, White v. State, No. 05-09-00112-CR, 2010 WL 2951748 (Tex. App.-Dallas July 29, 2010, pet. ref’d), “…the fact that the defendant and the victim had stopped dating shortly before the assault was irrelevant because Section 71.0021(b) provided that a dating relationship included persons who have had a continuing romantic or intimate relationship.”

In White, the defendant and the victim dated for about two months, but they broke up a few weeks before the assault. Even though they were not dating at the time of the incident, the state had admissible evidence sufficient to show the two were dating in the recent past for purposes of charges pursuant to Tex. Fam. Code §71.0021(b).

The prosecutor may rely upon witness testimony to establish whether there is, or was, a dating relationship as defined in the Texas Family Code. The perspective of others, as well as statements made by the accused, may be enough to establish a “dating relationship.” If other people believe there is (or was) a romance, or if one of the parties tells the police there was a romance, then there may be enough to establish a “dating relationship” under the law.

For instance, in Villarreal v. State, 286 S.W.3d 321, 324 (Tex. Crim. App. 2009), the prosecutor established a “dating relationship” based upon witness testimony that the defendant and complainant had spent the night at each other’s homes and they had dated for around one month.

In Herrera v. State, 526 S.W.3d 800, 810-811 (Tex. Crim. App. 2017), while noting that a “casual acquaintanceship” is not sufficient to support the necessary factors to prove up a “dating relationship,” the accused’s own words taken in a police statement served to prove up the “dating relationship” when he said to the investigating officer that he had asked his prom date to be his girlfriend and had given her a ring on prom night, and responded affirmatively when asked if he loved her.

- Please read: Don’t Ever Talk to The Police! Never Give a Statement to Law Enforcement in Texas Criminal Investigation.

When Dating Results in a Criminal Assault Charge

In Texas, a special set of criminal laws exist that make violence illegal in a romantic, intimate, or familial relationship. These are the three Texas Domestic Violence Statutes which define domestic assault, aggravated assault, and continuous violence against the family.

Criminal assault can be brought based upon violence occurring in a dating relationship as defined in the Texas Family Code. These can come as either misdemeanor or felony charges.

For more, read: Felony Charges under Texas and Federal Law: Criminal Defense Overview.

Texas Penal Code Chapter 22 deals with assault crimes, and it states that the police can arrest someone and charge them with “assault” if they:

(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse;

(2) intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse; or

(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.

That assault charge can be increased to a charge of “aggravated domestic assault” under Texas Penal Code Section 22.02 if there can also be shown that the defendant:

(1) caused serious bodily injury to another, including the person’s spouse; or

(2) used or exhibited a deadly weapon during the commission of the assault.

For more on Family Violence Assault Charges, read our earlier discussions in:

Gun Ownership and Possession

If someone is arrested and convicted for Dating Violence under Texas law, then the consequences can be life-changing in many ways aside from potential incarceration and fines. For instance, federal law provides that anyone who has been convicted of domestic violence in any state cannot own a firearm (unless certain exceptions apply). See 18 U.S.C. § 922(g)(9) (“the Lautenberg Amendment”) and the discussion provided by the U.S. Department of Justice Office of the Attorney General Manual.

Texas Gun Control laws provide similar restrictions. In Texas, anyone who is convicted of a Class A Domestic Violence misdemeanor cannot own or possess a gun for five (5) years from the date of release from incarceration or community supervision. See, Texas Code of Criminal Procedure Article 7.14(e)(1).

For more on firearms, read our discussion in: Weapons Charges In Texas: Gun Laws And Gun Crimes Under Texas Law and Guns, Gun Rights, Gun Ownership in Texas, and Weapons Arrests: Things To Know After Orlando.

Protective Orders and Dating Violence Allegations

In tandem with proceedings in the criminal justice system, dating violence allegations can be brought in civil court in order to obtain a protective order. This is an order issued by a judge that prohibits the accused from taking certain actions regarding the alleged victim.

The civil protective order can forbid communications or contact between the two individuals. The protective order can state that the accused is not allowed to go near the alleged victim’s home or place of employment or school, for instance. It can order the accused to stay away from the alleged victim’s children and pets. It may state that the accused (called the “Respondent” in the civil proceeding) is ordered by the court to not threaten, harass, or stalk the alleged victim (called the “Petitioner” in the civil proceeding).

If the protective order is violated, then the accused can be charged with a crime and arrested for violation of the protective order. See Texas Penal Code §25.07 entitled, Violation of Certain Court Orders or Conditions of Bond in A Family Violence, Child Abuse or Neglect, Sexual Assault or Abuse, Indecent Assault, Stalking, Or Trafficking Case.

For more, read the discussion of Protective Orders published by the Harris County District Attorney’s Office.

Protective Order Registry

Moreover, Texas Government Code § 72.154 (“Monica’s Law”), mandates that protective orders dealing with dating violence allegations as well as other family violence cases are to be made available to the general public in an online registry. This can have far-reaching implications for the accused both personally and professionally.

Publicly accessible information regarding each protective order must consist of the following:

(1) the court that issued the protective order;

(2) the case number;

(3) the full name, county of residence, birth year, and race or ethnicity of the person who is the subject of the protective order;

(4) the dates the protective order was issued and served;

(5) the date the protective order was vacated, if applicable; and

(6) the date the protective order expired or will expire, as applicable.

Criminal Defense of Dating Assault Charges in Texas

In order to obtain a conviction for domestic violence or assault in these situations, the state prosecutor has to establish beyond a reasonable doubt with admissible evidence that on the date of the incident, a “dating relationship” existed, or had existed in the past, between the accused and the complainant. Tex. Penal Code §22.01; Tex. Fam. Code §71.0021; see, e.g., Granger v. State, 584 S.W.3d 571 (Tex. App.-San Antonio 2019, no pet.)

Of importance to anyone being investigated for dating violence charges by Texas law enforcement is the broad brush with which the prosecutor can paint the relationship with the accused and the complainant to build a dating relationship charge.

While the statute includes a specific exclusion, investigators as well as the ADA may argue that the relationship between the two people constitutes dating even if they do not, and never have, lived together or if they have only known each other a short amount of time.

There is no minimum number of dates, or a minimum number of phone calls or text messages that are needed before the state can assert a dating relationship existed upon which to base a dating domestic violence charge. The ADA need only meet the three criteria within Tex. Fam. Code §71.0021(b) with facts unique to the particular circumstances of the incident.

In these cases, it is extremely important to have an experienced and zealous criminal defense attorney advocating on behalf of the accused, not only to challenge the admissibility of the State’s evidence and demonstrate its weaknesses but to independently investigate and advance a defense case to show mitigating circumstances that apply to the matter.

Many of these matters will be resolved in plea negotiations. However, should the case go to a full jury trial, the jury will have the “responsibility to fairly resolve conflicts in testimony, to weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts,” and the defense must be able to present a case that is legally sufficient to support the jury’s findings that a dating relationship did not exist between the accused and the alleged victim, or that no assault as defined in the Texas Penal code occurred. See, Balderas v. State, 517 S.W.3d 756, 766 (Tex. Crim. App. 2016).

For more, read:

_____________________________________

For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article “FAMILY VIOLENCE AND ASSAULT OFFENSES: LEGAL PROCEDURE GUIDE.”

Posted on September 2, 2021 by Michael Lowe , on Arrest and Indictment, Assaults, InDepth Articles

View More Case Results

Comments are welcomed here and I will respond to you -- but please, no requests for personal legal advice here and nothing that's promoting your business or product. Comments are moderated and these will not be published.