What is a Non-Prosecution Affidavit?

Blogs from January, 2023


Being convicted of family violence can lead to severe consequences for the accused. The offense is not limited to people related to or married to the victim but can include former spouses or roommates. In some cases, a victim of family violence may wish to withdraw the charges against the offender for various reasons.

While the victim may dismiss the lawsuit in a civil suit, the case is different in a criminal family violence lawsuit handled by the District Attorney as the legal representative of the State of Texas. San Marcos criminal defense attorneys explain what the document entails.

What is the Purpose of a Texas Affidavit of Non-Prosecution?

An affidavit of non-prosecution is a sworn document in which the plaintiff expresses their desire not to prosecute the case or participate in the prosecution. The statement is punishable under penalty of perjury if there are lies or falsehoods in the affidavit. The document also sets forth additional accounts for the complainant to complete.

No-Fault Divorce Flyer

For example, they can indicate that they don’t want to be a witness in the case or to be subpoenaed. For the document to qualify as an affidavit of non-prosecution, the victim must request the prosecutor to drop the charges. Before signing the form, it’s essential to consult skilled San Marcos criminal defense attorneys to understand the risks involved.

What Are the Crucial Things to Know About an Affidavit of Non-Prosecution?

While a victim of family violence signs an affidavit of non-prosecution to have the charges against the defendant dropped, it’s not a guarantee that the prosecutor will dismiss the case. However, the document can be helpful in the negotiations. Prosecutors can use it to protect themselves against questions that may arise later as to why they dropped the charges.

Since the prosecutor isn’t required to dismiss the case, they can rely on law enforcement evidence or other witnesses to handle the case if the complainant doesn’t want to cooperate. The jury could still convict with testimony from the complaining witness that they did not wish to prosecute.

Signing the Non-Prosecution Affidavit

It’s crucial to note that San Marcos family violence attorneys should not be the ones to make the complaining witness sign the non-prosecuting affidavit. Their role is to facilitate the affidavit to be created by taking the complaining witness statement to have the document signed and submitted to the prosecutor.

No-Fault Divorce Flyer

It’s not a requirement for complaining witnesses to sign an affidavit of non-prosecution when they don’t want to participate in the case. The defendant and their attorney should not attempt to force an accuser of family violence to sign the document. Forcing the complaining witness to sign can result in additional charges for the defendant.

What is the Impact of an Affidavit of Non-Prosecution?

Many factors come into play in signing an affidavit of non-prosecution. Many competing interests arise in the process of finalizing the document. First, a prosecutor may convince the complaining witness to reconsider their decision to file the affidavit.

Besides, even with the affidavit in place, the prosecutor may still try to win a conviction, although the case will be significantly weaker. Secondly, the attorney representing the defendant may present a strong defense with an affidavit of non-prosecution in place.

Lastly, it’ll be crucial for the accuser to work with skilled family violence lawyers in San Marcos. The attorneys will thoroughly review all the sworn statements and related communication to ensure the complaining witness doesn’t commit perjury in signing the affidavit.

What is the Process of Filing an Affidavit of Non-Prosecution in Texas?

In Texas, there’s no mandate for a formal procedure for filing an affidavit of non-prosecution. Instead, the prosecutor’s office might offer a generic form to communicate that the victim of family violence wishes to have the criminal case dismissed.

However, using a generic form doesn’t automatically cause the prosecution to drop the assault charges, especially if there’s more evidence that the prosecution can use to go on with the case.

Non-Prosecution Affidavit Flyer

In every case, the victim of an assault case signs a non-prosecution affidavit under the confirmation of a notary public. Failure to present notarized affidavit results in the document not being reliable evidence because there is no way to verify the authenticity of the statement.

How Can I Write an Affidavit of Non-Prosecution?

An affidavit of non-prosecution in Texas typically falls into two categories:

  • The accuser stands with the statements made to the police but expresses their desire to have the charges dropped.
  • The accuser denies the truthfulness of the statements or indicates that the police misunderstood the happenings leading to the arrest.

Whichever approach the victim uses, they must tell the truth. San Marcos criminal defense attorneys may not tell the complaining witness what to say, but they have a legal duty to instruct them to be honest to get the most out of the affidavit.

Legal Guidance from a Skilled Criminal Defense Attorney in San Marcos

Family violence cases can be emotional and complex. The complaining witness may drop the charges and recant their statements to the police. In some cases, there may be disagreements in the official story told by law enforcers. In either case, the victim may sign an affidavit of non-prosecution to express their wishes to have the charges dropped.

Before signing the document, it’s crucial to consult experienced San Marcos family violence lawyers to understand what signing the document means. Our lawyers have a strong background in criminal defense and have successfully represented clients in many cases and can represent you too. Contact us for legal counsel in your case for the most favorable outcome.

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