Article 42.013 Family-Violence Finding Is Mandatory | In re State ex rel. Tharp (2026)

In re The State of Texas, ex rel. Jennifer A. Tharp, 03-26-00522-CV, August 06, 2026.

On appeal from 433rd District Court of Comal County, Texas

Synopsis

Article 42.013 imposes a mandatory, ministerial duty on a Texas trial court to enter an affirmative family-violence finding in the judgment once the court determines that a Title 5 offense involved family violence as defined by Family Code section 71.004. The court likewise may not place in abeyance the required article 42A.504(b) $100 family-violence fine during community supervision; mandamus will lie to compel entry of both.

Relevance to Family Law

For Texas family-law litigators, this opinion matters well beyond criminal procedure. An affirmative family-violence finding in a criminal judgment can materially affect conservatorship, possession, protective-order strategy, relocation disputes, firearm-related restrictions, and credibility narratives in divorce and SAPCR litigation. Just as importantly, Tharp forecloses any assumption that a favorable probation structure in the criminal case can delay or soften the civil consequences of a family-violence adjudication; if the criminal court determines family violence was involved, the finding must appear in the judgment, and family courts will have a formal record to work with immediately rather than after revocation or some later “secondary judgment.”

Case Summary

Fact Summary

The State charged the defendant with continuous violence against the family, alleging two incidents of bodily injury against a household or dating-relationship complainant. After trial, the jury acquitted on the charged felony but convicted on the lesser-included misdemeanor offense of assault causing bodily injury, family violence. The district court rendered judgment on that verdict and later sentenced the defendant to 365 days in county jail, probated for two years, plus a $1,000 fine.

At punishment, the trial court attempted to use family-violence-related consequences as leverage during community supervision. The court stated that it would impose a Batterer’s Intervention Program condition but hold it in abeyance as a “carrot” for compliance. When the State requested an affirmative family-violence finding, the court asked about the ramifications and was told that such a finding would affect future enhancement exposure and trigger a mandatory $100 fine payable to a family violence center under article 42A.504(b).

The trial court then explored whether the family-violence finding and the $100 fine could likewise be held in abeyance during probation, analogizing the issue to its understanding of deadly-weapon findings in deferred-adjudication settings. Over the State’s objection, the court decided to withhold the affirmative finding from the judgment, marked it as “yet to be determined,” and omitted the $100 family-violence fine. The State sought mandamus relief.

Issues Decided

• Whether Code of Criminal Procedure article 42.013 requires a trial court to make and enter an affirmative family-violence finding in the judgment when the court determines that a Title 5 offense involved family violence as defined by Family Code section 71.004.

• Whether a trial court has discretion to place that family-violence finding in abeyance during a term of community supervision.

• Whether article 42A.504(b) requires the trial court to impose the $100 family-violence fine when community supervision is granted for a qualifying Title 5 offense involving family violence.

• Whether mandamus is the proper remedy to compel entry of the finding and the fine.

Rules Applied

The court relied principally on these authorities:

• Tex. Code Crim. Proc. art. 42.013, which provides that if, in the trial of a Title 5 Penal Code offense, the court determines the offense involved family violence as defined by Family Code section 71.004, the court shall make an affirmative finding and enter it in the judgment.

• Tex. Code Crim. Proc. art. 42A.504(b), which provides that if a judge grants community supervision to a defendant convicted of a Title 5 offense that the court determines involves family violence, the judge shall require payment of a $100 fine to a family violence center.

• Tex. Fam. Code § 71.004, defining “family violence” in relevant part as an act by a family or household member against another member intended to result in physical harm, bodily injury, assault, or sexual assault.

• Tex. Gov’t Code § 311.016(2), under the Code Construction Act, recognizing that “shall” imposes a duty.

• Butler v. State, 189 S.W.3d 299 (Tex. Crim. App. 2006), recognizing the trial court’s statutory obligation to enter an affirmative family-violence finding when the requisite determination is made.

• Mandamus standards from In re State ex rel. Ogg, 692 S.W.3d 481 (Tex. Crim. App. 2024), In re State ex rel. Weeks, 391 S.W.3d 117 (Tex. Crim. App. 2013), and related cases, requiring no adequate remedy at law and a ministerial duty.

• Authorities recognizing that the State’s restricted criminal-appeal rights can render mandamus the proper vehicle when a trial court refuses to perform a required act.

Application

The Austin Court of Appeals began with the mandamus framework and quickly concluded that the State had no adequate appellate remedy because the State could not appeal the omission of a family-violence finding from the judgment. That made the dispute turn on whether the requested acts were ministerial.

From there, the court focused on the statutory text. Article 42.013 says the court “shall” make and enter the finding; article 42A.504(b) says the judge “shall” impose the $100 fine if community supervision is granted in a qualifying family-violence case. The panel treated that language as mandatory, not permissive.

The more nuanced question was whether the trial court had actually “determine[d]” that the offense involved family violence. The court noted that a conviction labeled assault causing bodily injury, family violence does not automatically answer the article 42.013 question in every conceptual sense, because the statutory definition of family violence under Family Code section 71.004 contains its own elements and framing. Even so, the record here showed that the district court did make the necessary determination. The jury convicted on the lesser-included offense framed as assault family violence; the court rendered judgment on that verdict; and the entire punishment colloquy proceeded on the premise that this was a family-violence case. The trial court’s only hesitation was not factual uncertainty about whether family violence occurred, but whether it could postpone the legal consequences of that determination to create an incentive structure for probation compliance.

That was the fatal problem. The court of appeals rejected the idea that a trial court may use an affirmative family-violence finding, or the mandatory $100 fine, as a probationary bargaining chip. Once the court has made the determination contemplated by article 42.013, the statutes leave no room to defer entry of the finding or suspend imposition of the fine until a later revocation proceeding. In the appellate court’s view, the trial court’s proposed “secondary judgment” approach was inconsistent with the present-tense, mandatory duty imposed by the Code of Criminal Procedure.

Holding

The court held that article 42.013 imposes a ministerial duty on the trial court to make and enter an affirmative family-violence finding in the judgment when the court determines that a Title 5 offense involved family violence as defined by Family Code section 71.004. Because the district court made that determination here, it had no discretion to omit the finding from the judgment or mark it as “yet to be determined.”

The court further held that article 42A.504(b) required the trial court to impose the $100 family-violence fine once it placed the defendant on community supervision for a qualifying offense involving family violence. The trial court could not hold that fine in abeyance as an incentive for future compliance.

Finally, the court held that mandamus was the proper remedy because the State lacked an adequate remedy by appeal and the duties at issue were ministerial rather than discretionary. It therefore conditionally granted mandamus relief to compel entry of both the affirmative family-violence finding and the mandatory fine.

Practical Application

For family-law practitioners, Tharp strengthens the reliability of criminal judgments as source documents in later civil litigation. If the criminal court has determined family violence occurred in a Title 5 case, the judgment should now reflect that determination without delay, which matters in temporary-orders hearings, final conservatorship trials, modification actions, and protective-order proceedings. Practitioners should expect opposing counsel to use these judgments aggressively, particularly where the finding supports statutory restrictions, best-interest arguments, or a pattern-of-conduct theory.

This case also matters strategically when coordinating with criminal counsel. Family lawyers sometimes encounter criminal dispositions structured to minimize immediate downstream consequences during probation. Tharp makes clear that at least as to article 42.013 findings and the article 42A.504(b) fine, there is no lawful “wait and see” middle ground once the court has made the required determination. That means a family-law case may receive a formal adjudicative anchor far earlier than the respondent expected.

In custody litigation, this opinion gives petitioners and amici a stronger basis to argue that the existence of an affirmative family-violence finding is not a mere clerical detail; it is the mandatory legal consequence of the criminal court’s determination. In contested possession and conservatorship disputes, that distinction can matter when one side tries to downplay the criminal case as “just probation” or “not a real finding yet.”

In divorce and property litigation, the case may also affect leverage. A spouse facing an entered family-violence finding may confront altered settlement dynamics around exclusive use of the residence, protective provisions in temporary orders, reimbursement claims linked to misconduct, and negotiation over access to children during pendency. While Tharp is not a family-code merits opinion, it directly affects the evidentiary and strategic landscape in family court.

Practitioners should consider the following litigation uses:

• Use the criminal judgment itself, if it contains the affirmative finding, as a central exhibit in temporary-orders and final hearings.

• If a criminal court appears poised to omit or defer a required finding, coordinate quickly with criminal counsel and obtain the relevant record, because the issue may be corrected through mandamus and may alter the posture of the family case.

• Do not assume that probation means the family-violence consequences are contingent or suspended. After Tharp, the opposite assumption is safer.

• When representing the accused party in parallel family litigation, address the expected finding proactively rather than arguing that its omission from the initial paperwork negates its legal significance.

Checklists

Reviewing Parallel Criminal Cases for Family-Law Impact

• Obtain the indictment, verdict form, judgment, and community-supervision order.
• Check whether the offense is a Title 5 Penal Code offense.
• Determine whether the record shows the court found the conduct involved family violence under Family Code section 71.004.
• Verify whether the judgment contains an affirmative family-violence finding under article 42.013.
• If community supervision was granted, verify whether the $100 family-violence fine under article 42A.504(b) was imposed.
• Compare the oral pronouncement, written judgment, and docket sheet for inconsistencies.
• Flag any omission immediately if the family case depends on the existence of the finding.

Using the Criminal Judgment in Custody and Protective-Order Litigation

• Plead the family-violence finding specifically in the SAPCR, modification, or divorce petition where relevant.
• Attach or offer a certified copy of the criminal judgment.
• Tie the finding to the applicable Family Code standards governing conservatorship, possession, and protective relief.
• Use the criminal record to support requests for supervised possession, exchange protections, counseling, or no-contact provisions.
• Develop testimony explaining why the judgment matters now, not only as a historical event.
• Anticipate attempts to characterize the criminal disposition as informal or nonfinal because of probation, and rebut that characterization with Tharp.

Coordinating with Criminal Counsel

• Ask whether the criminal court has made, or is likely to make, a family-violence determination.
• Confirm whether anyone is proposing to “hold in abeyance” the finding or related statutory consequences.
• Share Tharp with criminal counsel if the court appears inclined to defer the finding.
• Preserve transcripts or reporter’s records of punishment hearings where the court discusses withholding the finding.
• Evaluate whether a delayed or omitted finding will affect temporary orders, mediation posture, or trial settings in the family case.
• Build family-case strategy on the assumption that a mandatory finding will ultimately be entered if the statutory prerequisites are met.

Avoiding the Trial-Court Error Identified in Tharp

• Do not treat article 42.013 as discretionary once the court has made the required determination.
• Do not assume the finding can be postponed until revocation or a later “secondary judgment.”
• Do not use the affirmative finding or the article 42A.504(b) fine as probationary incentives.
• Do not rely on analogies to other findings, such as deadly-weapon findings in different procedural contexts, without statutory support.
• Make a clear record if the court proposes to omit or defer the finding.
• Submit a proposed judgment that includes both the affirmative family-violence finding and the mandatory $100 fine where applicable.

Building a Family-Law Record Around the Finding

• Authenticate the judgment and any related criminal filings.
• Link the criminal finding to witness testimony, police records, medical evidence, and prior protective-order history.
• Address whether the conduct reflects an isolated event or a broader coercive-control pattern.
• Use the finding to frame best-interest arguments rather than relying on the judgment alone.
• Prepare for evidentiary objections concerning scope, prejudice, or collateral-use arguments.
• Distinguish between the mandatory existence of the finding and the separate family-court question of what weight to assign it.

Citation

In re The State of Texas, ex rel. Jennifer A. Tharp, No. 03-26-00522-CV, 2026 WL ___ (Tex. App.—Austin Aug. 6, 2026, orig. proceeding) (mem. op.).

Full Opinion

Read the full opinion here

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