Can we oppose a petition of non-disclosure on grounds of family violence for a felony offense even though the judgment doesn't include a finding of family violence. (The victim was a spouse)

Yes. The statute says "involving family violence," not "an affirmative finding of family violence." If you can prove up that it was family violence, then they're barred from the nondisclosure.

If it's important for other reasons to have that finding of family violence noted in the judgement, there is a case I just read for our case summaries that suggests a nunc pro tunc order could be given to establish the finding (the case doesn't deal with family violence, but the reasoning is the same).

Roots v. State

This message has been edited. Last edited by: Jon English,

I have a non-disclosure hearing tomorrow on a AFV case. Atty says that non-disclosure statute barrs only AFV cases with intentionally as cupable mental state because 71.004 says "an act....that is intended to result in phyical harm, etc. " and our misd complaint was intentionally, knowingly or recklessly. Any one else encountered this argument ??

I have NEVER heard of that. Our policy is to oppose anything that started as family violence, even if it pleads down to something else, because of the broad language used in the statute. If your opponent cites an authority please share it. That argument seems inconsistent with the penal code, which allows a reckless assault to be upgraded because of a victims family status. Plus his argument leaves out the fact that even threats are considered family violence or dating violence.

Remember too that you can use a prior AFV to upgrade the charge even if there is no finding. I make use of that when arguing many of these.

We always object as well to FV related cases. No authority cited. Attorney told me that this new theory was talked about at a recent seminar so he thought he would try it out. I agree it seems inconsistent with the penal code, but I am worried about the argument that "with intent" from the family code includes knowingly and recklessly from the penal code. Additionally, although the definition in 71.004 includes threats, when you look at 22.07 it includes that "with intent" language.

I have never looked at 22.07 enought to know that it could have a FV component. How about that? Never see many of them.