SLS 17RS-327 ENGROSSED
2017 Regular Session
SENATE BILL NO. 147
BY SENATOR RISER
Prefiled pursuant to Article III, Section 2(A)(4)(b)(i) of the Constitution of Louisiana.
MILITARY AFFAIRS. Provides relative to the Louisiana National Guard. (gov sig)
1 AN ACT
2 To amend and reenact R.S. 29:40, 102, 116, 120(C)(1), 132, and 136, relative to the Military
3 Department; to provide for leasing for military purposes; to provide for the
4 jurisdiction of courts-martial; to provide for the regulation of the Military
5 Department; to provide for the composition and conduct of disciplinary proceedings
6 of service members; to provide for administration of disciplinary hearings and
7 actions; to provide for exceptional circumstances; and to provide for related matters.
8 Be it enacted by the Legislature of Louisiana:
9 Section 1. R.S. 29:40, 102, 116, 120(C)(1), 132, and 136 are hereby amended and
10 reenacted to read as follows:
11 §40. Leasing of airport space for military purposes
12 The public advertising and bidding procedures governing the leasing of
13 airport space, military facilities, or reservations shall not apply to the Military
14 Department of Military Affairs of the state of Louisiana when leasing of such airport
15 space, at a publicly-owned airport military facilities, or reservations is for military
16 purposes.
17 * * *
Page 1 of 9
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions. SB NO. 147
SLS 17RS-327 ENGROSSED
1 §102. Article 2. Persons subject to this code
2 A. This code applies to all members of the state military forces when not
3 subject to the Uniform Code of Military Justice and while in a duty status or during
4 a period of time in which the member is under lawful order to be in a duty status at
5 all times and in all places. A court-martial or court of inquiry may be convened
6 and held in a unit of the state military forces serving outside the state, and the
7 court has the same jurisdiction and powers as if the court-martial or court of
8 inquiry were held within the state. An offense committed outside the state may
9 be tried and punished outside the state or within the state. For members of the
10 state military forces on active duty service in the Army National Guard of the
11 United States under Title 10, United States Code, this code shall apply if the
12 federal convening authority declines to convene a court-martial under the
13 Uniform Code of Military Justice.
14 B. For purposes of Article 112a of this code, members of the state military
15 forces shall be considered to be in a duty status at all times during said membership.
16 C. However, the The processing of charges and all proceedings, including
17 trial, may be conducted without regard to the duty status of the accused.
18 C. Subject matter jurisdiction for judicial or nonjudicial punishment
19 exists if there is a clear and convincing nexus between an offense under this code
20 and the state military force. When a member is in a duty status under either
21 Title 32 of the United States Code or State Active Duty under R.S. 29:7, there
22 shall be a rebuttal presumption that subject matter jurisdiction exists.
23 * * *
24 §116. Article 16. Courts-martial classified
25 A. The three kinds of courts-martial in the state military forces are:
26 (1) general courts-martial, consisting of:
27 (a) a military judge and not less than six members; or
28 (b) only a military judge, if before the court is assembled the accused,
29 knowing the identity of the military judge, and after consultation with defense
Page 2 of 9
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions. SB NO. 147
SLS 17RS-327 ENGROSSED
1 counsel, requests in writing a court composed only of a military judge and the
2 military judge approves;
3 (2)(a) special courts-martial, consisting of a military judge and not less than
4 six members; or
5 (b) only a military judge, if before the court is assembled the accused,
6 knowing the identity of the military judge, and after consultation with defense
7 counsel, requests in writing a court composed only of a military judge and the
8 military judge approves;
9 (3) summary courts-martial, consisting of one commissioned officer.
10 B. A waiver of the right to a trial by members may be waived by the
11 accused, but such waiver shall be exercised no later than forty-five days prior
12 to commencement of trial on the merits in the court-martial. A waiver, once
13 exercised, may not be revoked by the accused.
14 * * *
15 §120. Article 20. Summary courts-martial
16 * * *
17 C. A summary court-martial may sentence to:
18 (1) Confinement of not more than one week thirty days;
19 * * *
20 §132. Article 32. Investigation Preliminary hearing
21 A. Preliminary Hearing Required.
22 (1) No charge or specification may be referred to a general court-martial for
23 trial until a thorough and impartial investigation of all the matters set forth therein
24 has been made. This investigation shall include inquiry as to the truth of the matter
25 set forth in the charges, consideration of the form of charges, and a recommendation
26 as to the disposition which should be made of the case in the interest of justice and
27 discipline completion of a preliminary hearing, unless such hearing is waived by
28 the accused.
29 (2) The purpose of the preliminary hearing shall be limited to the
Page 3 of 9
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions. SB NO. 147
SLS 17RS-327 ENGROSSED
1 following:
2 (a) determining whether there is probable cause to believe an offense has
3 been committed and the accused committed the offense;
4 (b) determining whether the convening authority has court-martial
5 jurisdiction over the offense and the accused;
6 (c) considering the form of the charges; and
7 (d) recommending the disposition that should be made of the case.
8 B. The accused shall be advised of the charges against him and of his right
9 to be represented at that investigation by counsel. Upon his own request he shall be
10 represented by civilian counsel if provided by him at his own expense or military
11 counsel of his own selection if such counsel is reasonably available, or by counsel
12 detailed by the officer exercising general court martial jurisdiction over the
13 command. At that investigation full opportunity shall be given to the accused to cross
14 examine witnesses against him if they are available and to present anything he may
15 desire in his own behalf, either in defense or mitigation, and the investigating officer
16 shall examine available witnesses requested by the accused. If the charges are
17 forwarded after the investigation , they shall be accompanied by a statement of the
18 substance of the testimony taken on both sides and a copy thereof shall be given to
19 the accused. Hearing officer. (1) A preliminary hearing conducted pursuant to
20 Subsection A of this Section shall be conducted by an impartial judge advocate
21 certified under Article 27(B) of this code whenever practicable or, in exceptional
22 circumstances in which the interests of justice warrant, by an impartial hearing
23 officer who is not a judge advocate. If the hearing officer is not a judge
24 advocate, a judge advocate certified under Article 27(B) shall be available to
25 provide legal advice to the hearing officer.
26 (2) Whenever practicable, the judge advocate or other hearing officer
27 detailed to conduct a preliminary hearing shall be equal to or senior in grade
28 to the military counsel detailed to represent the accused or the government at
29 a preliminary hearing.
Page 4 of 9
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions. SB NO. 147
SLS 17RS-327 ENGROSSED
1 C. If an investigation of the subject matter of an offense has been conducted
2 before the accused is charged with the offense, and if the accused was present at the
3 investigation and afforded the opportunities for representation, cross examination,
4 and presentation prescribed in Subsection (B), no further investigation of that charge
5 is necessary under this Section unless it is demanded by the accused after he is
6 informed of the charge. A demand for further investigation entitles the accused to
7 recall witnesses for further cross examination and to offer any new evidence in his
8 own behalf. Report of results. At the conclusion of a preliminary hearing
9 conducted pursuant to Subsection A of this Section, the judge advocate or other
10 officer that conducted the preliminary hearing shall prepare a report that
11 addresses the matters specified in Paragraph (2) of Subsection A and Subsection
12 F of this Section.
13 D. The requirements of this Section are binding on all persons administering
14 this code but failure to follow them does not divest a military court of jurisdiction.
15 Rights of accused and victim. (1)The accused shall be advised of the charges
16 against him and of his right to be represented by counsel at a preliminary
17 hearing conducted pursuant to Subsection A of this Section. The accused has the
18 right to be represented at the preliminary hearing as provided in Article 38 of
19 this Code and in regulations prescribed under that Article.
20 (2) The accused may cross-examine witnesses who testify at the
21 preliminary hearing and present additional evidence in defense and mitigation,
22 relevant to the limited purposes of the hearing, as provided for in Paragraph (4)
23 of this Subsection and Paragraph (2) of Subsection A.
24 (3) A victim may not be required to testify at a preliminary hearing. A
25 victim who declines to testify shall be deemed to be not available for purposes
26 of a preliminary hearing.
27 (4) The presentation of evidence and examination, including
28 cross-examination, of witnesses at a preliminary hearing shall be limited to the
29 matters relevant to the limited purpose of the hearing, as provided in Paragraph
Page 5 of 9
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions. SB NO. 147
SLS 17RS-327 ENGROSSED
1 (2) of Subsection A of this Section.
2 E. Recording of preliminary hearing. A preliminary hearing under
3 Subsection A of this Section shall be recorded by a suitable recording device.
4 The victim may request the recording and shall have access to the recording as
5 prescribed by the Manual for Courts-Martial.
6 F. Effect of evidence of uncharged offense. If evidence adduced in a
7 preliminary hearing conducted pursuant to Subsection A of this Section
8 indicates that the accused committed an uncharged offense, the hearing officer
9 may consider the subject matter of that offense without the accused having first
10 been charged with the offense if the accused:
11 (1) is present at the preliminary hearing;
12 (2) is informed of the nature of each uncharged offense considered; and
13 (3) is afforded the opportunities for representation, cross-examination,
14 and presentation consistent with Subsection D of this Section.
15 G. Effect of violation. The requirements of this Section are binding on
16 all persons administering this Chapter, but failure to follow the requirement
17 does not constitute jurisdictional error.
18 H. Victim defined. For purposes of this Section, "victim" shall mean a
19 person who:
20 (1) is alleged to have suffered a direct physical, emotional, or pecuniary
21 harm as a result of the matters set forth in a charge or specification being
22 considered; and
23 (2) is named in one of the specifications.
24 * * *
25 §136. Article 36. Governor may prescribe rules Rules of procedure for
26 court-martial
27 A. The procedure, including modes of proof, in cases before military courts
28 may be prescribed by the governor by regulations which shall, so far as he considers
29 practicable, apply the principles of law and the rules of evidence generally
Page 6 of 9
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions. SB NO. 147
SLS 17RS-327 ENGROSSED
1 recognized in the trial of criminal cases in this state, but which may not be shall be
2 the federal Rules for Courts-Martial, as published in the most recent version of
3 the Manual for Courts-Martial, United States, except when such rules are
4 contrary to or inconsistent with this code.
5 B. The modes of proof in cases before courts-martial under this code
6 shall be the federal Military Rules of Evidence, as prescribed in the most recent
7 version of the Manual for Courts-Martial, United States, except when such rules
8 are contrary or inconsistent with this code.
9 C. The governor or adjutant general may promulgate additional rules
10 and regulations regarding courts-martial procedure. All rules and regulations
11 made under this Section shall be uniform insofar as practicable.
12 Section 2. This Act shall become effective upon signature by the governor or, if not
13 signed by the governor, upon expiration of the time for bills to become law without signature
14 by the governor, as provided by Article III, Section 18 of the Constitution of Louisiana. If
15 vetoed by the governor and subsequently approved by the legislature, this Act shall become
16 effective on the day following such approval.
The original instrument was prepared by J. Ashley Mitchell Carter. The
following digest, which does not constitute a part of the legislative
instrument, was prepared by Ashley Menou.
DIGEST
SB 147 Engrossed 2017 Regular Session Riser
Present law provides that the public advertising and bidding procedures will not apply to the
military when leasing airport space for military purposes.
Proposed law retains present law and extends the exception to the leasing of military
facilities and reservations when the leasing of such is for military purpose.
Present law provides that the code applies to all members of the military forces when they
are not subject to the Uniform Code of Military Justice and while in a duty status or when
the member is under lawful order to be in a duty status.
Proposed law extends the jurisdiction of the commanders to include that a court-martial or
court of inquiry can be convened and held in a unit serving outside of the state, granting the
court the same jurisdiction and powers of the court-martial inside of the state.
Proposed law further adds that an offense committed outside of the state can be tried and
punished either inside or outside of the state. This applies to active National Guard members
when the federal convening authority declines to convene a court-martial under the Uniform
Code of Military Justice.
Page 7 of 9
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions. SB NO. 147
SLS 17RS-327 ENGROSSED
Proposed law provides that proposed law applies to all members regardless of duty status
of the accused whenever there is a clear and convincing nexus between an offense and the
state military force. However, when a member is in active duty status in accordance to
present law, there shall be a rebuttable presumption that subject matter jurisdiction exists.
Proposed law retains present law concerning courts-martial classified but proposed law adds
authority for the accused to waive his right to a trial by members, but requires that it must
be exercised prior to 45 days before the beginning of the trial on the merits in the court-
martial. Once the waiver has been exercised, it cannot be revoked.
Proposed law changes the amount of time that a commanding officer can sentence a National
Guard member to confinement from one week to 30 days. Proposed law otherwise retains
present law sentence allowances concerning summary courts-martial.
Present law provides that a thorough and impartial investigation must be conducted as to the
truth of the matter, consideration of the charges, and a recommendation of the disposition
prior to any charges or specification being referred to a general court-martial for hearing.
Proposed law changes present law to require a preliminary hearing prior to any charges or
specification being referred to a general court-martial for hearing, unless the hearing is
waived by the accused.
Proposed law also provides that the scope of the preliminary hearing will be limited to:
(1)Determining whether there is probable cause to believe an offense has been
committed and the accused committed the offense;
(2)Determining whether the convening authority has court-martial jurisdiction over the
offense and the accused;
(3)Considering the form of the charges; and
(4)Recommending the disposition that should be made of the case.
Proposed law further provides a preliminary hearing will be conducted by an impartial judge
advocate certified under present law whenever practicable or, in exceptional circumstances
by an impartial hearing officer who is not a judge advocate. If the hearing officer is not a
judge advocate, a judge advocate certified under present law will be available to provide
legal advice to the hearing officer.
Proposed law provides that when the judge advocate or other hearing officer is detailed to
conduct the preliminary hearing, the officer will be equal to or senior in grade to military
counsel. After a hearing has been conducted, a report addressing the matters will be
prepared. The accused will be advised of the charges against him and of his rights and can
cross-examine witnesses who testify at the preliminary hearing and present evidence relevant
to the limited scope of the hearing.
Proposed law also adds that a victim may not be required to testify at the preliminary hearing
and when a victim declines to testify, and in such instances the victim will be deemed
unavailable for purposes of the preliminary hearing. The presentation of evidence and
examination will be limited to the matters relevant to the scope of the hearing and the
hearing will be recorded and the victim may request the recording and shall have access to
the recording as prescribed by the Manual for Courts-Martial.
Proposed law adds that if evidence adduced in a preliminary hearing indicates that the
accused committed an uncharged offense, the hearing officer may consider the subject
matter of that offense without the accused having first been charged with the offense if the
accused:
Page 8 of 9
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions. SB NO. 147
SLS 17RS-327 ENGROSSED
(1)Is present at the preliminary hearing;
(2)Is informed of the nature of each uncharged offense considered; and
(3)Is afforded the opportunities for representation, cross-examination, and presentation.
Proposed law defines "victim" for purposes of proposed law.
Present law provides that the procedure, including modes of proof, in cases before military
courts may be prescribed by the governor by regulations which shall, so far as he considers
practicable, apply the principles of law and the rules of evidence generally recognized in the
trial of criminal cases in Louisiana, but which may not be contrary to or inconsistent with
the Louisiana Code of Military Justice.
Proposed law provides that the procedure in cases before military courts shall be the federal
Rules for Courts-Martial, as published in the most recent version of the Manual for
Courts-Martial, United States, except when such rules are contrary to or inconsistent with
the Louisiana Code of Military Justice. Provides that the modes of proof in cases before
courts-martial shall be the federal Military Rules of Evidence, as prescribed in the most
recent version of the Manual for Courts-Martial, United States, except when such rules are
contrary or inconsistent with the Louisiana Code of Military Justice. Authorizes the governor
or adjutant general to promulgate additional rules and regulation regarding courts-martial
procedure.
Effective upon signature of the governor or lapse of time for gubernatorial action.
(Amends R.S. 29:40, 102, 116, 120(C)(1), 132, and 136)
Summary of Amendments Adopted by Senate
Committee Amendments Proposed by Senate Committee on Judiciary B to the
original bill
1. Makes technical changes.
Page 9 of 9
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.