What is an Affidavit of Nonprosecution?
When family members or friends get into a confrontation and someone gets arrested, the alleged victim often has “buyer’s remorse” the next day – that is, they regret that the police ever got involved. Not only was their loved one jailed, but now they are facing criminal prosecution and a possible record. The alleged victim tries to take it all back and tells the police or prosecutors that they want to “drop charges” – but unfortunately, that is easier said than done.
In many counties in Texas, and especially Tarrant County, police and prosecutors do not just drop charges solely at the request of an alleged victim. However, there is a mechanism in place – called an affidavit of non-prosecution in Texas – that may influence the prosecutor’s decision to proceed with a criminal case. Note, we emphasized the word “may.”
In this article, our experienced Fort Worth criminal defense attorneys explain an affidavit of non-prosecution in Texas, how to complete an ANP, why prosecutors are often skeptical of this legal document, and how it may impact a criminal case.
Affidavit of Non-Prosecution in Texas (ANP)
An affidavit of non-prosecution in Texas is a sworn statement made by an alleged crime victim expressing their desire for the accused not be prosecuted and for charges to be dismissed. In Texas, this legal document is often used in cases involving domestic violence, assault, or other crimes where the alleged victim has a personal relationship with the defendant. It is also sometimes used in theft cases where the victim has been fully or partially reimbursed by the accused.
Purpose of an Affidavit of Non-Prosecution
An affidavit of non-prosecution serves as a formal declaration by the alleged victim that they do not wish to participate in the prosecution process. This document can be submitted to the prosecutor’s office or the court as evidence of the victim’s intentions not to cooperate. It must be notarized.
Influence on Prosecutor’s Decision
Prosecutors consider several factors when deciding whether to pursue charges, and the victim’s wishes can be a persuasive factor in their determination. However, an affidavit of non-prosecution does not guarantee the dismissal of charges. Prosecutors are not legally obligated to abide by the alleged victim’s wishes in an affidavit of non-prosecution.
In fact, prosecutors generally don’t trust ANPs. They are skeptical that the alleged victim has ulterior motives for completing an affidavit of non-prosecution in Texas. It’s not uncommon for prosecutors to move forward with a case against the alleged victim’s wishes.
Possible Reasons for Filing an Affidavit of Non-Prosecution
As mentioned, prosecutors are often skeptical of affidavits of non-prosecution in Texas. While the alleged victim’s intentions may be completely pure and true, prosecutors still may question their motives. Here are some reasons an alleged victim might choose to file an affidavit of non-prosecution in Texas:
Reconciliation with the accused
In some cases, the alleged victim or witness may decide to reconcile with the accused person, particularly if they share a personal relationship, such as family members or close friends. Reconciliation may involve resolving disputes or misunderstandings, leading the alleged victim or witness to reconsider their stance on the case. This change of heart may result in a request to drop the charges or the submission of a non-prosecution affidavit.
Fear of retaliation
The alleged victim or witness may be afraid that the accused or their associates will retaliate against them if they continue to support the prosecution’s case. This fear can manifest as threats of physical harm, emotional abuse, or other adverse consequences. In such situations, the alleged victim or witness may choose to recant their statement, withdraw their support for the case, or request non-prosecution to protect themselves.
Insufficient evidence to support the allegations
If the evidence supporting the allegations against the accused is weak or unreliable, the alleged victim or witness may question the validity of their initial statement or testimony. This doubt may lead them to revise or retract their account of events, potentially impacting the prosecution’s case. In some instances, the alleged victim or witness may request non-prosecution due to concerns about the evidentiary basis of the charges.
Personal or financial dependency on the accused
The alleged victim or witness may rely on the accused for emotional support, financial assistance, or other forms of dependency. This reliance can create a conflict of interest, as the alleged victim or witness may be hesitant to pursue legal action against someone they depend on. In such cases, they may reconsider their involvement in the case or seek non-prosecution to preserve their relationship with the accused.
Have children together
When the alleged victim or witness and the accused have children together, this shared parental responsibility can further complicate the decision-making process in a criminal case. The alleged victim or witness may be concerned about the impact of the legal proceedings on their children, both emotionally and financially. They may also worry about the potential disruption to their family life, such as custody arrangements or the children’s relationship with the accused parent. As a result, the alleged victim or witness may choose to seek reconciliation, request non-prosecution, or reconsider their involvement in the case to prioritize their children’s well-being and maintain family stability.
Lied about the accusation
In some instances, the alleged victim or witness may have initially provided a false or misleading account of the events in question. This falsehood could be the result of various factors, such as personal animosity, a desire for attention, or a misguided attempt to protect themselves or someone else. If the alleged victim or witness later acknowledges that their initial statement was untruthful, they may decide to recant their testimony or request non-prosecution to rectify the situation and prevent further legal repercussions for the accused.
These factors, individually or in combination, can significantly impact the course of a criminal case and the decisions made by the alleged victim or witness. Understanding these dynamics is crucial for both the prosecution and defense when preparing their strategies and addressing the concerns of those involved in the case.
Legal Process Involving an Affidavit of Non-Prosecution
1. Filling Out the Affidavit
Filling out an affidavit of non-prosecution in Texas is pretty straight-forward. It should state that the victim doesn’t want to cooperate or prosecute. The affidavit must be signed under penalty of perjury, attesting that the information provided is true and correct to the best of their knowledge. The notary public who witnessed the signature will also sign the affidavit, verifying that it was properly signed in their presence. Filing a false statement under penalty of perjury can result in criminal charges. It is important to provide accurate information when submitting an affidavit of non-prosecution in Texas.
Here’s an example of an Affidavit of Non-Prosecution Form: Affidavit-of-NonProsecution-Form-2020.
2. Filing the Affidavit
To file an affidavit of non-prosecution in Texas, the alleged victim must contact the appropriate District Attorney’s Office or contact a private attorney who can file it on their behalf.
3. Prosecutor’s Evaluation
Once the affidavit is filed, the prosecutor will evaluate the case and the affidavit’s content. The prosecutor may also consider the defendant’s criminal history, the severity of the alleged offense, and other relevant factors before making a decision.
4. Potential Outcomes of an ANP
Case Dismissal: If the prosecutor decides not to proceed with the case after reviewing the affidavit, they may file a motion to dismiss the charges.
Reduced Charges: In some instances, the prosecutor may offer a plea bargain with reduced charges or penalties, taking the affidavit into account.
Continuation of Prosecution: The prosecutor can still choose to proceed with the case despite the affidavit of non-prosecution, particularly in cases of serious allegations.
Common Criminal Cases with ANPs
Non-prosecution affidavits can be used in various criminal cases, including but not limited to:
ANPs are common in domestic or family violence cases, where an alleged victim decides to reconcile with the accused or believes that pursuing charges would be detrimental to the defendant and family dynamic.
Assault cases are extremely common in Texas. If the alleged victim feels that the incident was a misunderstanding or that the charges against the accused are unwarranted, they may pursue an affidavit of non-prosecution in Texas.
Theft or property crime cases
In cases where the property has been returned or the parties have reached a civil agreement, the alleged victim may choose to submit a non-prosecution affidavit to request the dismissal of theft charges.
Again, it is important to understand that the decision to dismiss a case ultimately lies with the prosecutor. They will weigh the affidavit’s merits against the interests of justice and the community before deciding whether to proceed with the case.
How Prosecutors Pursue Cases when Alleged Victims Don’t Want to Prosecute
It may seem counterintuitive, but some prosecutors actually prefer victims who do not want to cooperate. When they go to trial, they just call the officers who responded to the scene and play the 911 call for the jury. That way, they don’t have to worry about what the alleged is going to say on the stand or what is going to come out under cross-examination by the defense attorney.
Facing an Assault Charge? Need an ANP? Contact Us.
If you are facing criminal charges in Tarrant County and the alleged victim has submitted an affidavit of non-prosecution – or wants to submit an ANP – it is important to understand that this document alone may not be enough to obtain a dismissal. You should contact an experienced Fort Worth criminal defense attorney with a proven track record of success as soon as possible. Getting a prosecutor to dismiss a case takes skill and experience.
The seasoned criminal defense attorneys at Varghese Summersett have the knowledge and expertise to produce the most favorable outcome possible in your case. We can also arrange for the alleged victim to come to our office to complete an ANP. Contact us today at 817-203-2220 for a free consultation.
FAQs about Affidavits of Non-Prosecution in Texas
There are several ways to get an affidavit of non-prosecution form in Texas including:
- Contact the defendant’s defense attorney: Many alleged victims will contact the defendant’s defense attorney to fill out an ANP.
- Contact the District Attorney’s office: Reach out to the District Attorney’s (DA) office handling the case in the county where the offense occurred and tell them you want to fill out an ANP.
- Obtain the affidavit form from the Internet: Seek out Texas-specific forms online and download the affidavit of non-prosecution to fill out. Here is a downloadable form for your convenience: https://versustexas.com/wp-content/uploads/2020/07/Affidavit-of-NonProsecution-Form-2020.pdf
- Contact a private attorney: Reach out to an experienced criminal defense attorney in your area for assistance in filling out the ANP form.
After completing the affidavit of non-prosecution form, you will need to sign it in the presence of a notary public. The notary will verify your identity, witness your signature, and affix their notary seal to the document. At Varghese Summersett, we have notaries in our office but you can find notaries in your area with a quick Internet search. After it is notarized, the form can be submitted to the prosecutor’s office.
A well-crafted non-prosecution affidavit should contain the following key elements:
- Personal information: The affidavit should clearly state the name, address, and contact information of the person making the statement.
- Relationship to the accused: The affidavit should state the nature of the relationship between the person making the statement and the accused individual.
- Reason for the request: The person making the statement should explain their rationale for seeking non-prosecution, including any factors that have influenced their decision.
- Refusal to Cooperate: The affidavit should state that you do not want to appear as a witness, testify or make any statements about the accused or the alleged offense
- Sworn statement: The affidavit must be signed under the penalty of perjury, attesting that the information provided is true and accurate to the best of that person’s knowledge.
Assault family violence, also referred to as domestic assault, is a threat or act of violence towards a family member or someone with whom the defendant lives. This includes:
- couples who are not married, such as individuals in a dating relationship;
- anyone who lives under the same roof, including roommates;
- grandparents and grandchildren; or
- parents and children – whether biological children or not.
Under Texas Penal Code § 22.01, a defendant commits the offense of assault – or in this case, domestic assault – if he or she:
- intentionally, knowingly, or recklessly causes bodily injury to another;
- intentionally or knowingly threatens another with imminent bodily injury; or
- 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.
Domestic assault is a misdemeanor, however, it is a gateway into a number of felony family violence offenses that occur after an altercation with a family member, someone with whom they live with, or someone with whom they are dating. Read more about family violence in Texas: https://versustexas.com/felony-family-violence-lawyer/
No, submitting an affidavit of non-prosecution in Texas does not guarantee the dismissal of charges in Texas. The decision to proceed with or dismiss a case ultimately lies with the prosecutor, who will take the affidavit into account but is not bound by it. The prosecutor will weigh the merits of the affidavit against the interests of justice and the community before deciding whether to continue with the case.
What happens if an alleged victim or witness changes their mind after submitting an Affidavit of Non-Prosecution in Texas?
If an alleged victim changes their mind after submitting an affidavit of non-prosecution in Texas, they should contact the District Attorney’s office handling the case as soon as possible to inform them of the change in their stance. Depending on the circumstances and the stage of the legal proceedings, the prosecutor may choose to reevaluate the case. However, the decision to proceed or not will still be at the prosecutor’s discretion, taking into account the available evidence, the interests of justice, and other relevant factors.
While non-prosecution affidavits can be beneficial in some instances, they are not without their drawbacks including:
Prosecutorial discretion: The final decision to prosecute a case rests with the prosecutor, who may choose to proceed with the case despite the submission of a non-prosecution affidavit.
Coercion or manipulation concerns: There is a risk that the accused may pressure or manipulate the alleged victim into signing a non-prosecution affidavit.
Impact on future cases: If a non-prosecution affidavit is submitted and the charges are dropped, it may be difficult for the alleged victim to pursue charges in the future.