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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 and to enact R.S. 14:40.2(J) and Code of3
Criminal Procedure Article 335.2, relative to the issuance of abuse prevention orders;4
to provide relative to abuse prevention orders in cases of domestic abuse and5
stalking; to provide relative to the effective term of certain portions of a protective6
order in cases of domestic abuse; to provide for procedures; to provide for a hearing7
and notice; to provide for conditions of release in stalking cases; and to provide for8
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
(2) Any protective order granted pursuant to the provisions of this21
Subsection shall be served on the defendant at the time of sentencing.22 HLS 12RS-349 REENGROSSED
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(3)(a) The court shall order that the protective order be effective either for1
an indefinite period of time or for a fixed term which shall not exceed eighteen2
months.3
(b) If the court grants the protective order for an indefinite period of time4
pursuant to Subparagraph (a) of this Paragraph, after a hearing, on the motion of any5
party and for good cause shown, the court may modify the indefinite effective period6
of the protective order to be effective for a fixed term, not to exceed eighteen7
months, or to terminate the effectiveness of the protective order. A motion to modify8
or terminate the effectiveness of the protective order may be granted only after a9
good faith effort has been made to provide reasonable notice of the hearing to the10
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
(4)(a) Immediately upon granting a protective order, the court shall cause to17
have prepared a Uniform Abuse Prevention Order, as provided in R.S. 46:2136.2,18
shall sign such order, and shall forward it to the clerk of court for filing, without19
delay.20
(b) The clerk of the issuing court shall send a copy of the Uniform Abuse21
Prevention Order or any modification thereof to the chief law enforcement official22
of the parish where the victim resides. A copy of the Uniform Abuse Prevention23
Order shall be retained on file in the office of the chief law enforcement officer as24
provided in this Subparagraph until otherwise directed by the court.25
(c) The clerk of the issuing court shall transmit the Uniform Abuse26
Prevention Order, or any modification thereof, to the Louisiana Protective Order27
Registry pursuant to R.S. 46:2136.2, by facsimile transmission, mail, or direct28 HLS 12RS-349 REENGROSSED
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electronic input, where available, as expeditiously as possible, but no later than the1
end of the next business day after the order is filed with the clerk of court.2
F.G. The provisions of this Section shall not apply to a private investigator3
licensed pursuant to the provisions of Chapter 56 of Title 37 of the Louisiana4
Revised Statutes of 1950, acting during the course and scope of his employment and5
performing his duties relative to the conducting of an investigation.6
G.H. The provisions of this Section shall not apply to an investigator7
employe d by an authorized insurer regulated pursuant to the provisions of Title 228
of the Louisiana Revised Statutes of 1950, acting during the course and scope of his9
employment and performing his duties relative to the conducting of an insurance10
investigation.11
H.I. The provisions of this Section shall not apply to an investigator12
employed by an authorized self-insurance group or entity regulated pursuant to the13
provisions of Chapter 10 of Title 23 of the Louisiana Revised Statutes of 1950,14
acting during the course and scope of his employment and performing his duties15
relative to the conducting of an insurance investigation.16
I.J. A conviction for stalking shall not be subject to expungement as17
provided for by R.S. 44:9.18
Section 2. R.S. 46:2136(D) and (F) are hereby amended and reenacted to read as19
follows: 20
§2136. Protective orders; content; modification; service21
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D.(1) On the motion of any party, the court, after notice to the other parties23
and a hearing, may modify a prior order to exclude any item included in the prior24
order, or to include any item that could have been included in the prior order.25
(2) On the motion of any party, after a hearing, the court may modify the26
effective period of a protective order pursuant to Paragraph (F)(2) of this Section.27
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F.(1) Any Except as provided in Paragraph (2) of this Subsection, any final1
protective order or approved consent agreement shall be for a fixed period of time,2
not to exceed eighteen months, and may be extended by the court, after a3
contradictory hearing, in its discretion. Such protective order or extension thereof4
shall be subject to a devolutive appeal only.5
(2)(a) For any protective order granted by the court which directs the6
defendant to refrain from abusing, harassing, or interfering with the person as7
provided in R.S. 46:2135(A)(1), the court may grant the order to be effective for an8
indefinite period of time as provided by the provisions of this Paragraph on its own9
motion or by motion of the petitioner. The indefinite period shall be limited to the10
portion of the protective order which directs the defendant to refrain from abusing,11
harassing, or interfering with the person as provided in R.S. 46:2135(A)(1).12
(b) The hearing for this motion shall be conducted concurrently with the13
hearing for the rule to show cause why the protective order should not be issued.14
(c) Any motion to modify the indefinite effective period of the protective15
order as provided in Subparagraph (a) of this Paragraph may be granted only after16
a good faith effort has been made to provide reasonable notice of the hearing to the17
victim, the victim's designated agent, or the victim's counsel, and either of the18
following occur:19
(i) The victim, the victim's designated agent, or the victim's counsel is20
present at the hearing or provides written waiver of such appearance.21
(ii) After a good faith effort has been made to provide reasonable notice of22
the hearing, the victim could not be located.23
* * *24
Section 3. Code of Criminal Procedure Article 327.1 is hereby amended and25
reenacted and Code of Criminal Procedure Article 335.2 is hereby enacted to read as26
follows:27 HLS 12RS-349 REENGROSSED
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Art. 327.1. Bail restrictions to be transmitted to Louisiana Protective Order Registry1
If, as part of a bail restriction, an order is issued for the purpose of preventing2
violent or threatening acts or harassment against, or contact or communication with3
or physical proximity to, another person for the purpose of preventing domestic4
abuse, stalking, or dating violence, the judge shall cause to have prepared a Uniform5
Abuse Prevention Order, as provided in R.S. 46:2136.2(C), shall sign such order, and6
shall forward it to the clerk of court for filing, all without delay. The clerk of the7
issuing court shall transmit the Uniform Abuse Prevention Order to the Louisiana8
Protective Order Registry, R.S. 46:2136.2(A), by facsimile transmission, mail, or9
direct electronic input, where available, as expeditiously as possible, but no later than10
the end of the next business day after the order is filed with the clerk of court.11
* * *12
Art. 335.2. Stalking; conditions of release13
A. In determining conditions of release of a defendant who is alleged to have14
committed the crime of stalking pursuant to the provisions of R.S. 14:40.2, the court15
shall consider whether the defendant poses a threat or danger to the victim. If the16
court determines that the defendant poses such a threat or danger, it shall require as17
a condition of bail that the defendant refrain from going to the residence or18
household of the victim, the victim's school, and the victim's place of employment,19
or otherwise contacting the victim in any manner whatsoever, and shall refrain from20
having any further contact with the victim.21
B. A violation of the conditions of release may be punishable by the22
forfeiture of bail and issuance of a bench warrant for the arrest of the defendant or23
remanding the defendant to custody or a modification of the terms of bail.24
C. If, as part of a bail restriction, an order is issued pursuant to the provisions25
of this Article, the judge shall cause to have prepared a Uniform Abuse Prevention26
Order, as provided in R.S. 46:2136.2, shall sign such order, and shall forward it to27
the clerk of court for filing, all without delay. The clerk of the issuing court shall28
transmit the Uniform Abuse Prevention Order to the Louisiana Protective Order29 HLS 12RS-349 REENGROSSED
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Registry, R.S. 46:2136.2(A), by facsimile transmission, mail, or direct electronic1
input, where available, as expeditiously as possible, but no later than the end of the2
next business day after the order is filed with the clerk of court.3
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 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.
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
directing 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.
(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) HLS 12RS-349 REENGROSSED
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Summary of Amendments Adopted by House
Committee Amendments Proposed by House Committee on Administration of Criminal
Justice to the original bill.
1. Deleted proposed law provision which required the protective order to be served
on the defendant in open court.
2. Amended proposed law provision which required the court to grant a protective
order for an indefinite period of time to give the court the discretion in granting
the order for an indefinite effective period or a definite effective period, not to
exceed 18 months.
3. Deleted the repeal of present law that 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.