ENROLLED

Regular Session, 2003

$&71R
SENATE BILL NO. 304

BY SENATOR DARDENNE

AN ACT

To amend and reenact Code of Civil Procedure Arts. 3603.1(A), 3604(C),

3607.1(A) and (B), and 3610, Code of Criminal Procedure Arts. 29(B),

30, 327.1, 335.1(A), 871.1 and 895(L)(1), R.S. 9:366 and 372(A), R.S.

13:4243(B) and 4248(A) and (C), R.S. 14:79(A)(1) and (2) and (E),

R.S. 46:2135(A)(2), 2136(A)(2), 2136.2(A), (B) and (F), the

introductory paragraph of 2140, 2140(1) and (2) and to enact R.S.

9:372.1, R.S. 46:1842(9)(d) and 2151(C), all relative to domestic

violence; to provide for payment of costs for a peace bond and security

for a temporary restraining order or preliminary injunction by a victim

of domestic violence; to provide for filing and transmittal of Uniform

Abuse Prevention Orders; to provide for the definition of dating

violence; to provide for protective order relief relative to possession of

the family home; to provide for the duties of law enforcement officers

relative to domestic abuse; to provide for injunctions against

harassment; to delete certain notice requirements in protective order

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proceedings; to provide relative to the violation and enforcement of

foreign protective orders; and to provide for related matters.

Be it enacted by the Legislature of Louisiana:

Section 1. Code of Civil Procedure Arts. 3603.1(A), 3604(C),

3607.1(A) and (B) and 3610 are hereby amended and reenacted to read as

follows:

Art. 3603.1. Governing provisions for issuance of protective orders;

grounds; notice; court-appointed counsel

A. Notwithstanding any provision of law to the contrary, and

particularly the provisions of Domestic Abuse Assistance, Part II of

Chapter 28 of Title 46, Post-Separation Family Violence Relief Act and

Injunctions and Incidental Orders, Parts IV and V of Chapter 1 of Code

Title V of Title 9, Domestic Abuse Assistance, Chapter 8 of Title XV

of the Children’s Code, and this Chapter, no temporary restraining order

or preliminary injunction prohibiting a spouse or other person from

harming or going near or in the proximity of another shall: (1) Issue

issue unless the complainant has good and reasonable grounds to fear

for his or her safety or that of the children, or the complainant has in the

past been the victim of domestic abuse by the other spouse.

(2) Be effective unless the order or notice specifically informs

the person against whom the temporary or preliminary order is issued

that if, after a contradictory hearing, an injunction or other protective

order is issued against him, it may result in the lifetime loss of his

ability to carry a firearm.

* * *

Art. 3604. Form, contents, and duration of restraining order

* * *

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C. A temporary restraining order issued in conjunction with a

rule to show cause for a protective order filed in an action pursuant to

the Protection from Family Violence Act, R.S. 46:2121, et seq., and

pursuant to the Protection From Dating Violence Act, R.S. 46:2151,

shall remain in force until a hearing is held on the rule for the protective

order or for thirty days, whichever occurs first. If the initial rule to

show cause is heard by a hearing officer, the temporary restraining

order shall remain in force for fifteen days after the hearing or until the

judge signs the protective order, whichever occurs last. At any time

before the expiration of a temporary restraining order issued pursuant

to this Subsection, it may be extended by the court for a period not

exceeding thirty days.

* * *

Art. 3607.1. Registry of temporary restraining order, preliminary

injunction or permanent injunction, their

dissolution or modification

A. Immediately upon rendering a decision granting the

petitioner a temporary restraining order, issued in conjunction with a

rule to show cause for a preliminary or permanent injunction

prohibiting a spouse person from harming the other spouse or a child

a family or household member or dating partner, the judge shall

cause to have prepared a Uniform Abuse Prevention Order, as provided

in R.S. 46:2136.2(C), shall sign such order, and shall forward it to the

clerk of court for filing, all without delay.

B. Where a temporary restraining order, preliminary injunction,

or permanent injunction relative to domestic abuse or dating violence

is issued, dissolved, or modified, the clerk of court shall transmit the

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Uniform Abuse Prevention Order to the Louisiana Protective Order

Registry, R.S. 46:2136.2(A), by facsimile transmission, mail, or direct

electronic input, where available, as expeditiously as possible, but no

later than the end of the next business day after the order is filed with

the clerk of court.

* * *

Art. 3610. Security for temporary restraining order or preliminary

injunction

A temporary restraining order or preliminary injunction shall not

issue unless the applicant furnishes security in the amount fixed by the

court, except where security is dispensed with by law. The security

shall indemnify the person wrongfully restrained or enjoined for the

payment of costs incurred and damages sustained. However, no

security is required when the applicant for a temporary restraining

order or preliminary or permanent injunction is seeking protection

from domestic abuse, dating violence, stalking, or sexual assault.

Section 2. Code of Criminal Procedure Arts. 29(B), 30, 327.1,

335.1(A), 871.1, and 895(L)(1) are hereby amended and reenacted to read as

follows:

Art. 29. Peace bond hearing; costs

* * *

B. The applicant for a peace bond shall pay as advanced court

costs a fee of fifteen dollars for each defendant summoned to a hearing.

If the magistrate discharges the defendant, the costs shall be paid by the

applicant. If the magistrate orders the defendant to give a peace bond,

the costs shall be paid instead by the defendant. However, the court

may assess those costs, or any part thereof, against any party, as it may

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consider equitable. An applicant for a peace bond who is seeking

protection from domestic abuse, dating violence, stalking, or sexual

assault shall not be required to prepay or be cast with court costs

or cost of service or subpoena for the issuance of a peace bond.

* * *

Art. 30. The peace bond

A. The peace bond shall be for a specified period, not to exceed

six months, and its condition shall be that the defendant will not

commit the threatened or any related breach of the peace. The bond

shall be for a sum fixed by the magistrate. When fixed by a justice of

the peace, the maximum amount of the bond shall not exceed one

thousand dollars.

Art. 30(B) is all new law.

B. If the peace bond is for the purpose of preventing domestic

abuse or dating violence, the magistrate shall cause to have prepared a

Uniform Abuse Prevention Order, as provided in R.S. 46:2136.2(C),

shall sign such order, and shall forward it to the clerk of court for filing,

all without delay. The clerk of the issuing court shall transmit the

Uniform Abuse Prevention Order to the Louisiana Protective Order

Registry, R.S. 46:2136.2(A), by facsimile transmission, mail, or direct

electronic input, where available, as expeditiously as possible, but no

later than the end of the next business day after the order is filed with

the clerk of court.

C. The peace bond obligation shall run in favor of the clerk or

judge of the court ordering the bond, in favor of the city when ordered

by the mayor of a mayor’s court, or in favor of the police jury when the

bond is ordered by a justice of the peace. The proceeds shall be

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disposed of in the manner provided by law.

D. The types of security for a peace bond shall be governed by

the bail bond rules set forth in Title VIII, as far as applicable.

* * *

Art. 327.1. Bail restrictions to be transmitted to Louisiana Protective

Order Registry

If, as part of a bail restriction, an order is issued for the purpose

of preventing violent or threatening acts or harassment against, or

contact or communication with or physical proximity to, another person

for the purpose of preventing domestic abuse or dating violence, the

judge shall cause to have prepared a Uniform Abuse Prevention Order,

as provided in R.S. 46:2136.2(C), shall sign such order, and shall

forward it to the clerk of court for filing, all without delay. The clerk

of the issuing court shall transmit the Uniform Abuse Prevention Order

to the Louisiana Protective Order Registry, R.S. 46:2136.2(A), by

facsimile transmission, mail, or direct electronic input, where available,

as expeditiously as possible, but no later than the end of the next

business day after the order is filed with the clerk of court.

* * *

Art. 335.1. Offenses against a family or household member;

provisions for forfeiture, arrest, modification

A. In determining conditions of release of a defendant who is

alleged to have committed an offense against the defendant’s family or

household member, as defined in R.S. 46:2132(4), or against the

defendant’s dating partner, as defined in R.S. 46:2151, or who is

alleged to have committed the offense of stalking under the provisions

of R.S. 14:40.2, the court shall consider whether the defendant poses a

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threat or danger to the victim. If the court determines that the defendant

poses such a threat or danger, it shall require as a condition of bail that

the defendant refrain from going to the residence or household of the

victim, the victim’s school, and the victim’s place of employment or

otherwise contacting the victim in any manner whatsoever, and shall

refrain from having any further contact with the victim.

* * *

Art. 871.1. Sentencing orders to be sent to Louisiana Protective Order

Registry

If part of the sentence contains an order for the purpose of

preventing violent or threatening acts or harassment against, contact or

communication with, or physical proximity to, another person in order

to prevent domestic abuse or dating violence, the judge shall cause to

have prepared a Uniform Abuse Prevention Order, as provided in R.S.

46:2136.2(C), shall sign such order, and shall forward it to the clerk of

court for filing, all without delay. The clerk of the issuing court shall

transmit the Uniform Abuse Prevention Order to the Louisiana

Protective Order Registry, R.S. 46:2136.2(A), by facsimile

transmission, mail, or direct electronic input, where available, as

expeditiously as possible, but no later than the end of the next business

day after the order is filed with the clerk of court.

* * *

Art. 895. Conditions of probation

* * *

L.(1) In all cases where the defendant has been convicted of an

offense of domestic abuse as provided in R.S. 46:2132(3) to a family

or household member as provided in R.S. 46:2132(4), or of an offense

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of dating violence as provided in R.S. 46:2151(C) to a dating

partner as provided in R.S. 46:2151(B), the court shall order that the

defendant submit to and successfully complete a court approved course

of counseling or therapy related to family or dating violence, for all or

part of the period of probation. If the defendant has already completed

such a counseling program, said counseling requirement shall be

required only upon a finding by the court that such counseling or

therapy would be effective in preventing future domestic abuse or

dating violence.

* * *

Section 3. R.S. 9:366 and 372(A) are hereby amended and reenacted,

and R.S. 9:372.1 is hereby enacted to read as follows:

§366. Injunctions

A. All separation, divorce, child custody, and child visitation

orders and judgments in family violence cases shall contain an

injunction as defined in R.S. 9:362. Upon issuance of such injunction,

the judge shall cause to have prepared a Uniform Abuse Prevention

Order as provided in R.S. 46:2136.2(C), shall sign such order, and

shall forward it to the clerk of court for filing, all without delay.

The clerk of the issuing court shall transmit the Uniform Abuse

Prevention Order to the Louisiana Protective Order Registry, R.S.

46:2136.2(A) by facsimile transmission, mail, or direct electronic

input, where available, as expeditiously as possible, but no later

than the end of the next business day after the order is filed with

the clerk of court.

B. Any violation of the injunction, if proved by the appropriate

standard, shall be punished as contempt of court, and shall result in a

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termination of all court ordered child visitation.

* * *

§372. Injunction against abuse; form; central Registry

A. In a proceeding for divorce, a court may grant an injunction

prohibiting a spouse from harassing or physically or sexually abusing

the other spouse or a child of either of the parties.

* * *

§372.1. Injunction against harassment

R.S. 9:372.1 is all new law.

In a proceeding for divorce, a court may grant an injunction

prohibiting a spouse from harassing the other spouse.

Section 4. R.S. 13:4243(B) and 4248(A) and (C) are hereby amended

and reenacted to read as follows:

§4243. Notice of filing

* * *

B. Promptly upon the filing of the petition, the foreign

judgment, and the affidavit, the clerk shall send a notice by certified

mail to the judgment debtor at the address given and shall make a note

of the mailing in the record. The notice shall include the name and

address of the judgment creditor and his attorney, if any. In addition,

the judgment creditor may mail a notice of the filing to the judgment

debtor and may file proof of mailing with the clerk. Failure to mail

notice of filing by the clerk shall not affect the enforcement

proceedings if proof of mailing by the judgment creditor has been filed.

In cases where the petitioner is seeking to enforce the provisions of a

protective order as referred to in R.S. 46:2136 or Children's Code

Article 1570, the address of the petitioner may remain confidential with

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the court.

* * *

§4248. Foreign protective orders

A. A copy of any foreign protective order authenticated in

accordance with an act of congress or the statutes of this state may be

annexed to and filed with an ex parte petition praying that the

protective order be made executory in this state. An affidavit setting

forth the name and last known address of the person or persons to

whom the protective order is directed shall also be attached thereto.

The address of the petitioner may remain confidential with the

court.

* * *

C. The clerk of the issuing court shall mail a copy of the

Uniform Abuse Prevention Order to the person or persons to whom the

protective order is directed at the address provided in the petitioner's

affidavit and shall also transmit the order to the Louisiana Protective

Order Registry, R.S. 46:2136.2(A), by facsimile transmission, mail, or

direct electronic input, where available. The order shall be mailed and

transmitted as expeditiously as possible, but no later than the end of the

next business day after the order is filed with the clerk of court.

Section 5. R.S. 14:79(A)(1) and (2) and (E) are hereby amended and

reenacted to read as follows:

§79. Violation of protective orders

A.(1) Violation of protective orders is the willful disobedience

of a preliminary or permanent injunction or protective order issued

pursuant to R.S. 9:361 et seq., R.S. 9:372, R.S. 46:2131 et seq., R.S.

46:2151, Children's Code Article 1564 et seq., Code of Civil Procedure

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Articles 3604 and, 3607.1, or Code of Criminal Procedure Articles

335.1, 327.1, 335.1 and 871.1 after a contradictory court hearing, or the

willful disobedience of a temporary restraining order or any ex parte

protective order issued pursuant to R.S. 9:361 et seq., R.S. 9:372, R.S.

46:2131 et seq., R.S. 46:2151, criminal stay-away orders as provided

for in Code of Criminal Procedure Articles 327.1, and 335.1 and 871.1,

Children’s Code Article 1564 et seq., or Code of Civil Procedure

Articles 3604 and 3607.1, if the defendant has been given notice of the

temporary restraining order or ex parte protective order by service of

process as required by law.

(2) An order for protection from abuse issued by a foreign state

shall be afforded full faith and credit. This order shall contain a

certification by the issuing court confirming both of the following:

(a) That the issuing court has jurisdiction over the parties and

subject matter under the law of the issuing state.

(b) That reasonable notice and opportunity to be heard were

given to the defendant sufficient to protect the defendant’s right to due

process before the order was issued; or, if the order was issued ex parte,

the court ordered that the defendant be given reasonable notice and an

opportunity to be heard as required in the issuing state.

Violation of protective orders shall also include the willful

disobedience of an order of protection issued by a foreign state.

* * *

E. Law enforcement officers shall use every reasonable means,

including but not limited to immediate arrest of the violator, to enforce

a preliminary or permanent injunction or protective order obtained

pursuant to R.S. 9:361, R.S. 9:372, R.S. 46:2131 et seq., R.S. 46:2151,

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Children’s Code Article 1564 et seq., Code of Civil Procedure Articles

3604 and 3607.1, or Code of Criminal Procedure Articles 335.1 327.1,

335.1 and 871.1 after a contradictory court hearing, or to enforce a

temporary restraining order or ex parte protective order issued pursuant

to R.S. 9:361, R.S. 9:372, R.S. 46:2131 et seq., R.S. 46:2151,

Children’s Code Article 1564 et seq., Code of Civil Procedure Articles

3604 and 3607.1, or Code of Criminal Procedure Articles 327.1 and

335.1 if the defendant has been given notice of the temporary

restraining order or ex parte protective order by service of process as

required by law.

* * *

Section 6. R.S. 46:2135(A)(2), 2136(A)(2), 2136.2(A), (B), and (F),

the introductory paragraph of 2140, 2140(1) and (2), are hereby amended and

reenacted, and R.S. 46:1842(9)(d) and 2151(C) are hereby enacted to read as

follows:

§1842. Definitions

In this Chapter:

* * *

(9) "Victim" means a person against whom any of the following

offenses have been committed:

* * *

R.S. 46:1842(9)(d) is all new law.

(d) Any offense against the person as defined in the Criminal

Code committed against a family or household member as defined in

R.S. 46:2132(4) or dating partner as defined in R.S. 46:2151(B).

* * *

§2135. Temporary restraining order

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A. Upon good cause shown in an ex parte proceeding, the court

may enter a temporary restraining order, without bond, as it deems

necessary to protect from abuse the petitioner, any minor children, or

any person alleged to be an incompetent. Any person who shows

immediate and present danger of abuse shall constitute good cause for

purposes of this Subsection. The order may include, but is not limited

to, the following:

* * *

(2) Awarding to a party use and possession of specified

community jointly owned or leased property, such as an automobile.

* * *

§2136. Protective orders; content; modification; service

A. The court may grant any protective order or approve any

consent agreement to bring about a cessation of abuse of a party, any

minor children, or any person alleged to be incompetent, which relief

may include but is not limited to:

* * *

(2) Where there is a duty to support a party, any minor children,

or any person alleged to be incompetent living in the residence or

household, ordering payment of temporary support or provision of

suitable housing for them. , or granting possession to the petitioner

of the residence or household to the exclusion of the defendant, by

evicting the defendant or restoring possession to the petitioner

where the residence is solely owned by the defendant and the

petitioner has been awarded the temporary custody of the minor

children born of the parties.

* * *

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§2136.2. Louisiana Protective Order Registry

A. In order to provide a statewide Registry for abuse prevention

orders to prevent domestic and dating violence and to aid law

enforcement, prosecutors and the courts in handling such matters, there

shall be created a Louisiana Protective Order Registry administered by

the Judicial Administrator's Office, Louisiana Supreme Court. The

Judicial Administrator's Office shall collect the data transmitted to it

from the courts of the state and enter it into the Louisiana Protective

Order Registry.

B. The Louisiana Protective Order Registry encompasses peace

bonds, temporary restraining orders, protective orders, preliminary

injunctions, permanent injunctions, and court-approved consent

agreements resulting from actions brought pursuant to R.S. 46:2131 et

seq., R.S. 46:2151, R.S. 9:361 et seq., R.S. 9:372, Children's Code

Article 1564 et seq., Code of Civil Procedure Article 3604, 3607.1, or

peace bonds pursuant to Code of Criminal Procedure Article 30(B),

or as part of the disposition, sentence, or bail condition of a criminal

matter pursuant to Code of Criminal Procedure Article 327.1 or Article

871.1 as long as such order is issued for the purpose of preventing

violent or threatening acts or harassment against, contact or

communication with, or physical proximity to, another person to

prevent domestic abuse or dating violence.

* * *

F. The judicial administrator's office shall make the Louisiana

Protective Order Registry available to state and local law enforcement

agencies, district attorney offices, the Department of Social Services,

office of family support, support enforcement services, office of

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community services, and the courts.

* * *

§2140. Law enforcement officers; duties

Whenever a law enforcement officer has reason to believe that

a family or household member or dating partner has been abused, the

officer shall immediately use all reasonable means to prevent further

abuse, including:

(1) Arresting the abusive party with a warrant or without a

warrant pursuant to Code of Criminal Procedure, Article 213, if

probable cause exists to believe that aggravated or second degree

battery a felony has been committed by that person, whether or not the

offense occurred in the officer's presence.

(2) Arresting the abusive party in case of simple assault,

aggravated assault, or simple battery, any misdemeanor crime which

endangers the physical safety of the abused person whether or not

the offense occurred in the presence of the officer, when the officer

reasonably believes there is impending danger to the physical safety of

the abused person in the officer's absence. If there is no cause to

believe there is impending danger, arresting the abusive party is at the

officer's discretion.

* * *

§2151. Dating violence

* * *

R.S. 46:2151(C) is all new law.

C. For purposes of this Section, “dating violence” includes but

is not limited to physical or sexual abuse and any offense against the

person as defined in the Criminal Code of Louisiana, except negligent

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injury and defamation, committed by one dating partner against the

other.

PRESIDENT OF THE SENATE

SPEAKER OF THE HOUSE OF REPRESENTATIVES

GOVERNOR OF THE STATE OF LOUISIANA

APPROVED:

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