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:

Domestic/Family Violence

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

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.