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STATE OF OKLAHOMA
1st Session of the 58th Legislature (2021)
HOUSE BILL 1028 By: Kerbs
AS INTRODUCED
An Act relating to victim protective orders; amending
22 O.S. 2011, Section 40.3, as last amended by
Section 4, Chapter 183, O.S.L. 2016 ( 22 O.S. Supp.
2020, Section 40.3), which relates to emergency
temporary orders of protection for certain victims;
directing peace officers to serve order and complete
the return of service when filing petition; directing
court clerk to review and evaluate petition;
providing for the filing and issuance of petition
despite absence of service; amending 22 O.S. 2011,
Sections 60.3, as last amended by Section 2, Chapter
113, O.S.L. 2019 and 60.16 (22 O.S. Supp. 2020,
Section 60.3), which relate to the Protectio n from
Domestic Abuse Act; directing peace officers to serve
order and complete the return of service when filing
petition; directing court clerk to review and
evaluate petition; providing for the filing and
issuance of petition despite absence of service ;
increasing time limitation for effectiveness of
emergency temporary orders; providing for
notification of hearing da te, time and location;
directing peace officer to provide copies of order to
victim and defendant; and providing an effective
date.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
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SECTION 1. AMENDATORY 22 O.S. 2011, Section 40.3, as
last amended by Section 4, Chapter 183, O.S.L. 2016 (22 O.S. Supp.
2020, Section 40.3), is amended to read as follows :
Section 40.3 A. When the court is not open for business, the
victim of domestic violence, stalking, harassment, rape, forcible
sodomy, a sex offense, kidnapping or assault and battery with a
deadly weapon or member of the immediate family of a victim o f
first-degree murder may request a petition for an emergency
temporary order of protection. The peace officer making the
preliminary investigation shall:
1. Provide the victim or member of the immediate family of a
victim of first-degree murder with a p etition for an emergency
temporary order of protection and, if necessary, assist the victim
or member of the immediate family of a victim of first -degree murder
in completing the petition form. The petition shall be in
substantially the same form as provi ded by Section 60.2 of this
title for a petition for protective order in domestic abuse cases;
2. Immediately notify, by telephone or otherwise, a judge of
the district court of the request for an emergency temporary order
of protection and describe the c ircumstances. The judge shall
inform the peace officer of the decision to approve or disapprove
the emergency temporary order;
3. Inform the victim or member of the immediate family of a
victim of first-degree murder whether the judge has approved or
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disapproved the emergency temporary order. If an emergency
temporary order has been approved, the peace officer shall provide
the victim, or a responsible adult if the victim is a minor child or
an incompetent person or member of the immediate family of a vi ctim
of first-degree murder, with a copy of the petition and a written
statement signed by the peace officer attesting that the judge has
approved the emergency temporary order of protection; and
4. Notify the person subject to the emergency temporary
protection order of the issuance and conditions of the order, if
known. Notification pursuant to this paragraph may be made
personally by the peace officer upon arrest or, upon identification
of the assailant, notice shall be given by any law enforcement peace
officer. A copy of the petition and the statement of the peace
officer attesting to the order of the judge shall be made available
to the person; and
5. Make every attempt to serve the subject of the order and
complete a return of service when filing the petition with the
district court. If the peace officer is unable to obtain service,
the petition shall be filed with the district court the next
business day. The court clerk shall review the petition upon
delivery by the peace officer to ensure all required documents are
accounted for. The court clerk, upon evaluation of the petition,
shall make sure a return of service is properly filled out and
attached to the petition. The court cler k shall document the
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hearing date and time assigned to the case . If the court clerk
observes that service has not been obtained, the petition shall
still be filed by the court clerk and issued to the appropriate
office of the county sheriff to obtain service with priority .
B. The forms utilized by law enforcement ag encies in carrying
out the provisions of this section may be substantially similar to
those used under Section 60.2 of this title.
SECTION 2. AMENDATORY 22 O.S. 2011, Section 60.3, as
last amended by Section 2, Chapter 113, O.S.L. 2019 (22 O.S. Supp.
2020, Section 60.3), is amended to read as follows:
Section 60.3 A. If a plaintiff requests an emergency ex parte
order pursuant to Section 60.2 of this title, the court shall hold
an ex parte hearing on the same day the petition is filed, if the
court finds sufficient grounds within the scope of the Protection
from Domestic Abuse Act stated in the petition to hold such a
hearing. The court may, for good cause shown at the hearing, issue
any emergency ex parte order that it finds nec essary to protect the
victim from immediate and present danger of domestic abuse,
stalking, or harassment. The emergency ex parte order shall be in
effect until after the full hearing is conducted. Provided, if the
defendant, after having been served, do es not appear at the hearing,
the emergency ex parte order shall remain in effect until the
defendant is served with the permanent order. If the terms of the
permanent order are the same as those in the emergency order, or are
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less restrictive, then it is not necessary to serve the defendant
with the permanent order. The Administrative Office of the Courts
shall develop a standard form for emergency ex parte protective
orders.
B. An emergency ex parte protective order authorized by this
section shall include the name, sex, race, date of birth of the
defendant, and the dates of issue and expiration of the protective
order.
C. If a plaintiff requests an emergency temporary ex parte
order of protection as provided by Section 40.3 of this title, the
judge who is notified of the request by a peace officer may issue
such order verbally to the peace officer or in writing when there is
reasonable cause to believe that the order is necessary to protect
the victim from immediate and present danger of domestic abuse .
When the order is issued verbally , the judge shall direct the peace
officer to complete and sign a statement attesting to the order.
The emergency temporary ex parte order shall be in effect until the
court date that was assigned by the court during th e approval of the
order. Emergency temporary ex parte orders shall be heard within
fourteen (14) days after issuance. The court shall provide a list
of available court dates for hearings.
The peace officer shall m ake every attempt to serve the subject
of the order and complete a return of service when filing the
petition with the district court. If the peace officer is unable to
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obtain service, the petition sh all be filed with the district court
the next business day. The court clerk shall review the pe tition
upon delivery by the peace officer to ensure all required documents
are accounted for. The court clerk, upon evaluation of the
petition, shall make sure a return of service is properly filled out
and attached to the petition. The court clerk shall document the
hearing date and time assigned to the case. If the court clerk
observes that service has not been obtained, the petition shall
still be filed by the court clerk and issued to the appropriate
office of the county sheriff to obtain service wit h priority.
D. If an action for divorce, separate maintenance,
guardianship, adoption or any other proceeding involving custody or
visitation has been filed and is pending in a county different than
the county in which the emergency ex parte order was iss ued, the
hearing on the petition for a final protective order shall be
transferred and held in the same county in which the action for
divorce, separate maintenance, guardianship, adoption or any other
proceeding involving custody or visitation is pending.
SECTION 3. AMENDATORY 22 O.S. 2011, Section 60.16, is
amended to read as follows:
Section 60.16 A. A peace officer shall not discourage a victim
of domestic abuse from pressing charges against the assailant of the
victim.
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B. 1. A peace officer may arrest without a warrant a person
anywhere, including a place of residence, if the peace officer has
probable cause to believe the person within the preceding seventy -
two (72) hours has committed an act of domestic abuse as defined b y
Section 60.1 of this title, although the assault did not take place
in the presence of the peace officer. A peace officer may not
arrest a person pursuant to this section without first observing a
recent physical injury to, or an impairment of the physi cal
condition of, the alleged victim.
2. An arrest, when made pursuant to this section, shall be
based on an investigation by the peace officer of the circumstances
surrounding the incident, past history of violence between the
parties, statements of any children present in the residence, and
any other relevant factors. A determination by the peace officer
shall be made pursuant to the investigation as to which party is the
dominant aggressor in the situation. A peace officer may arrest the
dominant aggressor.
C. When the court is not open for business, the victim of
domestic abuse may request a petition for an emergency temporary
order of protection. The peace officer making the preliminary
investigation shall:
1. Provide the victim with a petition fo r an emergency
temporary order of protection and, if necessary, assist the victim
in completing the petition form. The petition shall be in
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substantially the same form as provided by Section 60.2 of this
title for a petition for protective order;
2. Immediately notify, by telephone or otherwise, a judge of
the district court of the request for an emergency temporary order
of protection and describe the circumstances. The judge shall
inform the peace officer of the decision to approve or disapprove
the emergency temporary order;
3. Inform the victim whether the judge has approved or
disapproved the emergency temporary order. If an emergency
temporary order has been approved, the peace officer shall provide
the victim, or a responsible adult if the victim is a minor child or
an incompetent person, with a copy of the petition and a written
statement signed by the peace officer attesting that the judge has
approved the emergency temporary order of protection and notify the
victim that the emergency temporary order shall be effective only
until the close of business on the next day that the court is open
for business until the date of the hearing set by the judge. The
peace officer requesting the order shall be notified by the judge of
the date, time and cour troom location in which the hearing will be
held or shall be notified of the date, time and location of the
hearing from a list of available court dates provided by the judge.
The peace officer shall provide the victi m and defendant with a copy
of the completed order and return the original order to the district
court;
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4. Notify the person subject to the emergency temporary
protection order of the issuance and conditions of the order.
Notification pursuant to this paragraph may be made personally by
the peace officer or in writing. A copy of the petition and the
statement of the peace officer attesting to the order of the judge
shall be made available to such person; and
5. File a copy of the petition and the statement of the peace
officer with the dist rict court of the county immediately upon the
opening of the court on the next day the court is open for business.
The peace officer shall make every attempt to serve the subject of
the order and complete a return of service when filing the petition
with the district court. If the peace officer is unable to obtain
service, the petition shall be filed with the district court the
next business day. The court clerk shall review the petition upon
delivery by the peace officer to ensure all required documents are
accounted for. The court clerk, upon evaluation of the petition,
shall make sure a return of service is properly filled out and
attached to the petition. The court clerk shall document the
hearing date and time assigned to the case. If the court cl erk
observes that service has not been obtained, the petition shall
still be filed by the court clerk and issued to the appropriate
office of the county sheriff to obtain service with priority .
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D. The forms utilized by law enforcement agencies in carrying
out the provisions of this section may be substantially similar to
those used under Section 60.2 of this title.
SECTION 4. This act shall become effective November 1, 2021.
58-1-6001 GRS 12/23/20