Why a Complaining Witness Can't Just Drop Charges in Texas – And What an Affidavit of Non-Prosecution Really Means

One of the most common questions we hear at Texas Defenders from individuals facing criminal charges—especially in domestic violence or assault cases—is, “What happens if the victim wants to drop the charges?” Or even more directly, “The person who called the police doesn't want to go forward. Can't they just tell the court to dismiss it?”

Unfortunately, it's not that simple. In Texas, the complaining witness (commonly referred to as “the victim”) does not have the authority to drop criminal charges once they've been filed. This often leads to confusion, frustration, and a lot of misinformation. In this article, we'll clear up that misconception, explain the real role of the complaining witness in a criminal case, and walk you through what an Affidavit of Non-Prosecution actually means—and what it doesn't.

Who Files Criminal Charges in Texas?

Let's start with the basics: criminal charges in Texas are filed by the State of Texas, not the alleged victim. Once a crime is reported, and law enforcement responds, the case moves into the hands of the District Attorney (DA) or County Attorney's Office. If they decide there's enough evidence, they file charges—not the complaining witness.

Even if the person who made the report changes their mind later or wants to “drop the charges,” the case now belongs to the State. Only the prosecutor can decide to dismiss a case. The victim's wishes may be taken into consideration, but they are not legally binding on the prosecution.

Why Can't a Victim Drop Charges in Texas?

There are a few key reasons:

1. The State has an interest in punishing crime – The justice system views crime as an offense against the public order, not just the individual. For example, in family violence cases, the State has a strong interest in preventing repeat offenses and protecting victims from coercion or manipulation.

2. Victim recantation is common in domestic violence – Many cases involve complex personal relationships. The State knows that victims may feel pressure—emotional, financial, or physical—to recant their statements or ask for charges to be dropped. As a result, prosecutors often move forward even without the victim's cooperation.

3. Evidence can be sufficient without the victim – Prosecutors can use other evidence such as 911 calls, police bodycam footage, witness statements, photographs of injuries, and medical records to prove a case, even if the complaining witness doesn't testify.

What Is an Affidavit of Non-Prosecution (ANP)?

An Affidavit of Non-Prosecution is a sworn statement by the complaining witness stating that they do not wish to pursue criminal charges against the defendant. In essence, the person is asking the prosecution to consider dismissing the case.

This affidavit typically includes:

• A statement that the witness is not afraid of the accused;

• A claim that the incident has been misunderstood or taken out of context;

• An expression of their desire that the charges be dropped or the case dismissed.

Important: Signing an affidavit of non-prosecution does not automatically dismiss the charges. It is merely a request that the prosecutor may consider. The DA is under no obligation to honor it.

How Does an Affidavit of Non-Prosecution Affect a Criminal Case in Texas?

The affidavit can influence the DA's decision, especially in weaker cases or where the witness is the only major source of evidence. But it's not a silver bullet.

Here's how an ANP might affect a case:

• In a misdemeanor assault with no visible injuries or 911 call, the DA might be more likely to dismiss if the complaining witness signs an ANP.

• In a felony family violence case with serious injuries or strong corroborating evidence, the DA may proceed even if the victim signs an ANP and refuses to testify.

Additionally, some prosecutors may suspect witness tampering or coercion and may investigate further if an ANP is submitted, especially in domestic violence cases.

In some counties, prosecutors even have “no drop” policies in family violence cases, meaning they will proceed regardless of the victim's wishes.

Can the Complaining Witness Refuse to Testify?

This is another major area of confusion. Some people believe that if the complaining witness refuses to testify, the case will be dismissed. Again, not always true.

• The State can subpoena the witness and compel them to testify under threat of contempt or jail.

• If the witness refuses, they can be held in contempt of court.

• In rare cases, a witness can invoke the Fifth Amendment right against self-incrimination, but this only applies if testifying would expose them to criminal liability—not just because they don't want to testify.

There are also exceptions to the hearsay rule that allow the State to admit statements made by the victim even if they don't testify. For example, under the “forfeiture by wrongdoing” doctrine, if the defendant tried to prevent the witness from testifying (e.g., by threats or coercion), their prior statements may still come in.

Why Is This Misunderstanding So Common?

Much of this confusion comes from how civil law works. In a civil lawsuit (like a personal injury case), the person bringing the case can dismiss it. But a criminal case isn't a private dispute—it's the government prosecuting someone for violating the law.

People also mistakenly believe that filing an affidavit or refusing to cooperate will automatically cause the case to collapse. That's simply not the case under Texas law.

What Should You Do If You're Involved in a Case Like This?

Whether you're the accused or the complaining witness, the best thing you can do is consult an experienced criminal defense attorney immediately.

• If you're the accused, don't rely on the other person “dropping charges.” You need a legal defense strategy and someone who understands how prosecutors make decisions.

• If you're the complaining witness and want to sign an affidavit of non-prosecution, you should speak to a lawyer about the risks and implications. Submitting a false affidavit or doing so under pressure can have serious consequences.

At Texas Defenders, we routinely represent clients in assault and family violence cases in Dallas, Tarrant, and Collin Counties, and we know how to navigate these complex issues. We can also help coordinate with the complaining witness, explain the process, and work toward the best possible resolution.

Conclusion

The idea that a victim can “drop charges” is one of the biggest misconceptions in Texas criminal law. In reality, criminal cases are prosecuted by the State, and once charges are filed, only the District Attorney can decide to dismiss a case. While an affidavit of non-prosecution may help, it is not a guarantee of dismissal.

If you're facing criminal charges or involved in a case as a complaining witness, don't go it alone. Contact Texas Defenders today at 214-306-9696 to schedule a consultation and protect your rights.