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ß01 80. ¡â0
Regular Session, 2003
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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