HLS 12RS-349 ORIGINAL
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Regular Session, 2012
HOUSE BILL NO. 441
BY REPRESENTATIVE ABRAMSON
FAMILY VIOLENCE: Provides relative to the issuance of abuse prevention orders
AN ACT1
To amend and reenact R.S. 14:40.2(F), (G), (H), and (I), R.S. 46:2136(D) and (F), and Code2
of Criminal Procedure Article 327.1, to enact R.S. 14:40.2(J) and Code of Criminal3
Procedure Article 335.2, and to repeal R.S. 13:4248, relative to the issuance of abuse4
prevention orders; to provide relative to abuse prevention orders in cases of domestic5
abuse and stalking; to provide relative to the effective term of certain portions of a6
protective order in cases of domestic abuse; to provide for procedures; to provide for7
a hearing and notice; to provide for conditions of release in stalking cases; and to8
provide for related matters.9
Be it enacted by the Legislature of Louisiana:10
Section 1. R.S. 14:40.2(F), (G), (H), and (I) are hereby amended and reenacted and11
R.S. 14:40.2(J) is hereby enacted to read as follows:12
§40.2. Stalking13
* * *14
F.(1) Upon motion of the district attorney or on the court's own motion,15
whenever it is deemed appropriate for the protection of the victim, the court may, in16
addition to any penalties imposed pursuant to the provisions of this Section, grant a17
protective order which directs the defendant to refrain from abusing, harassing,18
interfering with the victim or the employment of the victim, or being physically19
present within a certain distance of the victim.20 HLS 12RS-349 ORIGINAL
HB NO. 441
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(2) Any protective order granted pursuant to the provisions of this1
Subsection shall be served on the defendant in open court at the time of sentencing.2
(3)(a) The protective order issued pursuant to the provisions of this3
Subsection shall be effective for an indefinite period of time.4
(b) However, after a hearing, on the motion of any party and for good cause5
shown, the court, in its discretion, may modify the indefinite effective period of the6
protective order to be effective for a fixed term as provided by Subparagraph (c) of7
this Paragraph, or to terminate the effectiveness of the protective order. A motion8
to modify or terminate the effectiveness of the protective order may only be granted9
after a good faith effort has been made to provide reasonable notice of the hearing10
to the victim, the victim's designated agent, or the victim's counsel, and either of the11
following occur:12
(i) The victim, the victim's designated agent, or the victim's counsel is13
present at the hearing or provides written waiver of such appearance.14
(ii) After a good faith effort has been made to provide reasonable notice of15
the hearing, the victim could not be located.16
(c) If the court modifies the indefinite effective period of the protective order17
to be effective for a fixed term, the fixed term shall not exceed eighteen months, but18
may be extended by the court, after a contradictory hearing, in its discretion.19
(4)(a) Immediately upon granting a protective order, the court shall cause to20
have prepared a Uniform Abuse Prevention Order, as provided in R.S. 46:2136.2,21
shall sign such order, and shall forward it to the clerk of court for filing, without22
delay.23
(b) The clerk of the issuing court shall send a copy of the Uniform Abuse24
Prevention Order or any modification thereof to the chief law enforcement official25
of the parish where the victim resides. A copy of the Uniform Abuse Prevention26
Order shall be retained on file in the office of the chief law enforcement officer as27
provided herein until otherwise directed by the court.28 HLS 12RS-349 ORIGINAL
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(c) The clerk of the issuing court shall transmit the Uniform Abuse1
Prevention Order, or any modification thereof, to the Louisiana Protective Order2
Registry pursuant to R.S. 46:2136.2, by facsimile transmission, mail, or direct3
electronic input, where available, as expeditiously as possible, but no later than the4
end of the next business day after the order is filed with the clerk of court.5
F.G. The provisions of this Section shall not apply to a private investigator6
licensed pursuant to the provisions of Chapter 56 of Title 37 of the Louisiana7
Revised Statutes of 1950, acting during the course and scope of his employment and8
performing his duties relative to the conducting of an investigation.9
G.H. The provisions of this Section shall not apply to an investigator10
employed by an authorized insurer regulated pursuant to the provisions of Title 2211
of the Louisiana Revised Statutes of 1950, acting during the course and scope of his12
employment and performing his duties relative to the conducting of an insurance13
investigation.14
H.I. The provisions of this Section shall not apply to an investigator15
employed by an authorized self-insurance group or entity regulated pursuant to the16
provisions of Chapter 10 of Title 23 of the Louisiana Revised Statutes of 1950,17
acting during the course and scope of his employment and performing his duties18
relative to the conducting of an insurance investigation.19
I.J. A conviction for stalking shall not be subject to expungement as20
provided for by R.S. 44:9.21
Section 2. R.S. 46:2136(D) and (F) are hereby amended and reenacted to read as22
follows: 23
§2136. Protective orders; content; modification; service24
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D.(1) On the motion of any party, the court, after notice to the other parties26
and a hearing, may modify a prior order to exclude any item included in the prior27
order, or to include any item that could have been included in the prior order.28 HLS 12RS-349 ORIGINAL
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(2) On the motion of any party, after a hearing, the court may modify the1
effective period of a protective order pursuant to Paragraph (2) of Subsection F of2
this Section.3
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F.(1) Any Except as provided in Paragraph (2) of this Subsection, any final5
protective order or approved consent agreement shall be for a fixed period of time,6
not to exceed eighteen months, and may be extended by the court, after a7
contradictory hearing, in its discretion. Such protective order or extension thereof8
shall be subject to a devolutive appeal only.9
(2)(a) For any protective order granted by the court which directs the10
defendant to refrain from abusing, harassing, or interfering with the person as11
provided in R.S. 46:2135(A)(1), the court may grant the order to be effective for an12
indefinite period of time as provided by the provisions of this Paragraph on its own13
motion or by motion of the petitioner. The indefinite period shall be limited to the14
portion of the protective order which directs the defendant to refrain from abusing,15
harassing, or interfering with the person as provided in R.S. 46:2135(A)(1).16
(b) The hearing for this motion shall be conducted concurrently with the17
hearing for the rule to show cause why the protective order should not be issued.18
(c) Any motion to modify the indefinite effective period of the protective19
order as provided in Subparagraph (a) of this Paragraph may only be granted after20
a good faith effort has been made to provide reasonable notice of the hearing to the21
victim, the victim's designated agent, or the victim's counsel, and either of the22
following occur:23
(i) The victim, the victim's designated agent, or the victim's counsel is24
present at the hearing or provides written waiver of such appearance.25
(ii) After a good faith effort has been made to provide reasonable notice of26
the hearing, the victim could not be located.27
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Section 3. Code of Criminal Procedure Article 327.1 is hereby amended and1
reenacted and Code of Criminal Procedure Article 335.2 is hereby enacted to read as2
follows:3
Art. 327.1. Bail restrictions to be transmitted to Louisiana Protective Order Registry4
If, as part of a bail restriction, an order is issued for the purpose of preventing5
violent or threatening acts or harassment against, or contact or communication with6
or physical proximity to, another person for the purpose of preventing domestic7
abuse, stalking, or dating violence, the judge shall cause to have prepared a Uniform8
Abuse Prevention Order, as provided in R.S. 46:2136.2(C), shall sign such order, and9
shall forward it to the clerk of court for filing, all without delay. The clerk of the10
issuing court shall transmit the Uniform Abuse Prevention Order to the Louisiana11
Protective Order Registry, R.S. 46:2136.2(A), by facsimile transmission, mail, or12
direct electronic input, where available, as expeditiously as possible, but no later than13
the end of the next business day after the order is filed with the clerk of court.14
* * *15
Art. 335.2. Stalking; conditions of release16
A. In determining conditions of release of a defendant who is alleged to have17
committed the crime of stalking pursuant to the provisions of R.S. 14:40.2, the court18
shall consider whether the defendant poses a threat or danger to the victim. If the19
court determines that the defendant poses such a threat or danger, it shall require as20
a condition of bail that the defendant refrain from going to the residence or21
household of the victim, the victim's school, and the victim's place of employment,22
or otherwise contacting the victim in any manner whatsoever, and shall refrain from23
having any further contact with the victim.24
B. A violation of the conditions of release may be punishable by the25
forfeiture of bail and issuance of a bench warrant for the arrest of the defendant or26
remanding the defendant to custody or a modification of the terms of bail.27
C. If, as part of a bail restriction, an order is issued pursuant to the provisions28
of this Article, the judge shall cause to have prepared a Uniform Abuse Prevention29 HLS 12RS-349 ORIGINAL
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Order, as provided in R.S. 46:2136.2, shall sign such order, and shall forward it to1
the clerk of court for filing, all without delay. The clerk of the issuing court shall2
transmit the Uniform Abuse Prevention Order to the Louisiana Protective Order3
Registry, R.S. 46:2136.2(A), by facsimile transmission, mail, or direct electronic4
input, where available, as expeditiously as possible, but no later than the end of the5
next business day after the order is filed with the clerk of court.6
Section 4. R.S. 13:4248 is hereby repealed in its entirety.7
DIGEST
The digest printed below was prepared by House Legislative Services. It constitutes no part
of the legislative instrument. The keyword, one-liner, abstract, and digest do not constitute
part of the law or proof or indicia of legislative intent. [R.S. 1:13(B) and 24:177(E)]
Abramson HB No. 441
Abstract: Provides relative to the issuance of abuse prevention orders issued in cases of
domestic abuse and stalking.
Present law provides for the issuance of protective orders in domestic abuse cases which
shall be in effect for a fixed period of time not to exceed 18 months, and can only be
extended by the court, after a contradictory hearing.
Proposed law retains present law but provides that certain portions of the protective order
which directs the defendant to refrain from abusing, harassing, or interfering with the person
may be effective for an indefinite period of time.
Proposed law further provides that the indefinite term may be modified by the court after a
contradictory hearing, on the motion of any party and for good cause shown if a good faith
effort has been made to provide notice of such hearing to the victim, his designated agent,
or his counsel, and either of the following occur:
(1)The victim, his agent, or his counsel appears at the hearing, provides written waiver
of such appearance.
(2)After a good faith effort has been made to notify the victim, the victim cannot be
located.
Present law provides for the crime of stalking.
Present law further provides for the issuance of protective orders as part of a bail restriction
or as a condition of release for certain crimes including domestic abuse or in situations of
dating violence.
Proposed law authorizes the issuance of protective orders against persons convicted of
stalking, and further provides that if the court determines that a defendant charged with the
crime of stalking poses a threat or danger to the victim, the court shall issue a protective
order, as a condition of bail, requiring the defendant to 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. HLS 12RS-349 ORIGINAL
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Present law provides that any protective order issued within this state or outside this state
shall be accorded full faith and credit by the courts of this state and enforced as if it were the
order of the enforcing court.
Present law (R.S. 13:4248) provides for an ex parte hearing to make any foreign protective
order executory in this state and to register the protective order with the La. Protective Order
Registry.
Proposed law repeals this provision of present law (R.S. 13:4248).
(Amends R.S. 14:40.2(F), (G), (H), and (I), R.S. 46:2136(D) and (F), and C.Cr.P. Art. 327.1;
Adds R.S. 14:40.2(J) and C.Cr.P. Art. 335.2; Repeals R.S. 13:4248)