What Is an Affidavit of Non-Prosecution in Texas?
In Texas domestic violence cases, it is not uncommon for an alleged victim to later decide they no longer want the charges to move forward. One way they express this desire is through an Affidavit of Non-Prosecution (ANP), a sworn statement requesting that the State of Texas drop or reconsider the case. While the affidavit can influence how prosecutors proceed, it does not automatically end the matter.
Our domestic violence defense lawyers in Houston at the Law Office of David A. Breston regularly work with clients facing these sensitive situations. Here, we guide you through what they mean, how they are used, and the limitations they carry in Texas courts.
Defining an Affidavit of Non-Prosecution
An Affidavit of Non-Prosecution is a formal, sworn, and notarized statement made by a complaining witness declaring that they do not wish for the State to pursue criminal charges against the defendant. Essentially, the witness is stating that they do not want to press charges and do not intend to testify or cooperate further.
Because the State, and not private individuals, technically prosecutes Texas criminal cases, filing an affidavit does not guarantee that the government will drop the charges. The prosecutor retains the discretion to proceed, even against the witness’s wishes.
Why Complainants Choose to Sign an Affidavit of Non-Prosecution
There are many reasons why an alleged victim might choose to sign an ANP, especially in domestic violence cases. Often, the events leading to an arrest are emotionally charged, and once tempers cool, the complainant regrets the severe consequences of involving law enforcement. Common motivations include:
- Misunderstanding: Police may have misinterpreted a heated verbal argument as an assault.
- Reconciliation: The parties reconcile and want to move past the incident.
- Fear of consequences: The complainant fears job loss or financial hardship if the defendant is incarcerated.
- Regret: The initial call to police was made in anger or fear and later feels disproportionate to the offense.
Prosecutors are more likely to press on regardless of the victim’s statement in allegations involving severe injury, repeat offenses, or serious violence.
Prosecutorial Discretion Can Limit an Affidavit of Non-Prosecution
An ANP is a powerful piece of evidence; however, it is not a guarantee that a case will be dismissed. Under Texas law, a criminal offense is considered a crime against the State, not just the individual victim. Therefore, the decision to proceed with prosecution or to dismiss the charges rests solely with the prosecuting attorney’s office. Prosecutors treat ANPs with scrutiny, particularly in domestic abuse cases, due to concerns about victim safety and potential coercion. When reviewing an ANP, the prosecutor will evaluate several factors:
- The severity of the alleged injury
- Whether the alleged victim has a history of signing ANPs
- The defendant’s criminal history, especially for similar offenses
- The existence of independent evidence, such as video footage, 911 recordings, or witness testimony, which can prove the case even without the complainant’s cooperation
If the State believes it can still prove the defendant’s guilt beyond a reasonable doubt using other evidence, or if it suspects the complainant was pressured, it may disregard the affidavit and proceed with the case. While an ANP serves as strong mitigating evidence for the defense, it does not override the prosecutor’s authority.