HB 1874-1_ Filed 02/08/2001, 11:13
Adopted 2/8/2001
Text Box
Adopted Rejected
[
]
COMMITTEE REPORT
YES:
11
NO:
0
MR. SPEAKER:
Your Committee on Courts and Criminal Code , to which was referred House Bill
1874 , has had the same under consideration and begs leave to report the same back to the
House with the recommendation that said bill be amended as follows:
SOURCE: Page 7, line 18; (01)AM187401.7. -->
Page 7, line 18, after "order" insert "
, if reasonably ascertainable
from the information received".
Page 7, line 20, strike "and".
Page 7, between lines 21 and 22, begin a new line double block
indented and insert:
"
(E) the name of the petitioner and any other protected
parties;
(F) the Social Security number, date of birth, and physical
description of each person who is the subject of the Indiana
protection order, if reasonably ascertainable from the
information received;
(G) the date the Indiana protection order expires;
(H) a caution indicator stating whether a person who is the
subject of the Indiana protection order is believed to be
armed and dangerous, if reasonably ascertainable from the
information received; and
(I) if furnished, a Brady record indicator stating whether
a person who is the subject of the Indiana protection order
is prohibited from purchasing or possessing a firearm
under federal law, if reasonably ascertainable from the
information received;".
Page 7, line 33, after "terminated" insert ",".
Page 7, line 33, strike "or expires,".
Page 9, line 24, delete "and".
Page 9, line 26, delete "whether",
Page 9, between lines 29 and 30, begin a new line double block
indented and insert:
" (I) the name and identification number of the officer who
serves a foreign protection order, if reasonably
ascertainable from the information received; and
(J) the manner in which the foreign protection order is
served, if reasonably ascertainable from the information
received;".
Page 10, line 3, after "terminated" delete "or expires".
Page 10, line 29, after "person" delete ";".
Page 10, line 29, after "person;" insert " , except the
nonconfidential part of a petition for a protective order that is
prescribed or approved by the division of state court
administration under
IC 34-26-2-2
(2);".
Page 11, delete lines 1 through 19, begin a new paragraph and
insert:
SOURCE: IC 33-11.6-4-15; (01)AM187401.12. -->
"SECTION 12.
IC 33-11.6-4-15
IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2001]: Sec. 15. (a) Subject to
subsection (c), the costs consist of:
(1) a township docket fee equal to five dollars ($5) plus forty-five
percent (45%) of the infraction or ordinance violation costs fee
under
IC 33-19-5-2
;
(2) bailiff's service of process by registered or certified mail fee
of six dollars ($6) for each service;
(3) the cost for the personal service of process by the bailiff or
other process server in the amount of eight dollars ($8) for each
service, with the exception that:
(A) personal service to execute a warrant for a protective order
under
IC 34-26-2
(or
IC 34-4-5.1
before its repeal) shall cost
a fee of twelve dollars ($12); and
(B) writs of restitution and writs of replevin shall cost a fee of
twelve dollars ($12);
(4) witness fees, if any, in the amount provided by
IC 33-19-1-6
to be taxed and charged in the circuit court of the county; and
(5) a redocketing fee, if any, of five dollars ($5).
Subject to subsection (c), the docket fee and the cost for the initial
service of process shall be paid upon the institution of each case.
Subject to subsection (c), the cost of service rendered subsequent to
the initial service shall be assessed and paid after such service has been
made, and the cost of witness fees shall be paid before the witnesses
are called.
(b) If the amount of the township docket fee computed under
subsection (a)(1) is not equal to a whole number, the amount shall be
rounded to the next highest whole number.
(c) The provisions of
IC 33-19-4.5
(costs related to domestic
violence offenses) apply to a small claims court, bailiff, sheriff, and
witnesses to the same extent as if the small claims court were a
court listed in
IC 33-19-1-1.
SOURCE: IC 33-17-1-11; (01)AM187401.13. -->
SECTION 13.
IC 33-17-1-11
IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2001]: Sec. 11. (a) The clerk shall
provide each person filing a petition for the issuance of a protective
order under
IC 34-26-2
without the assistance of an attorney the
following information:
(1) The procedure for obtaining a protective order.
(2) When a protective order becomes effective.
(3) Procedures to follow when a protective order is violated.
(4) Information concerning the waiver of fees under
IC 33-19-2-6.
(b) The information required under subsection (a) must be printed
in a manner that can be easily understood by a person who is not an
attorney.
(c) The attorney general shall develop an appropriate form to
provide the information referred to in subsection (a).
SOURCE: IC 33-19-4.5; (01)AM187401.14. -->
SECTION 14.
IC 33-19-4.5
IS ADDED TO THE INDIANA CODE
AS A
NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2001]:
Chapter 4.5. Costs Related to Domestic Violence Offenses
Sec. 1. This chapter applies to a person who files a motion,
petition, or complaint with a court seeking a protective order or an
order to enforce a foreign protection order to protect the person
from any of the following:
(1) Domestic violence.
(2) Sexual assault.
(3) Stalking.
Sec. 2. (a) As used in this chapter, "domestic violence" means
conduct against a person who is a family or household member
that is prohibited by:
(1) a misdemeanor or felony under the laws of the United
States, a state, or an Indian tribe that has as an element the
use, attempted use, or threatened use of physical force against
the person or property of another; or
(2) any other misdemeanor or felony under the laws of the
United States, a state, or an Indian tribe that, by its nature,
involves a substantial risk that physical force against the
person or property of another may be used in the course of
committing the offense;
regardless of whether the conduct results in criminal prosecution
or the person who engages in the conduct is an adult.
(b) The term does not include an act of self-defense.
Sec. 3. For purposes of this chapter, a person is a family or
household member of another person if the person is any of the
following:
(1) A spouse or former spouse of the other person.
(2) A person who has a child in common with the other
person.
(3) A person who is living or was living with the other person.
(4) A person who is dating or was dating the other person.
(5) A person who is having a sexual relationship or was having
a sexual relationship with the other person.
(6) The natural or adopted child of the other person.
(7) A person less than eighteen (18) years of age who is related
to a person described in subdivisions (1) through (6).
Sec. 4. As used in this chapter, "foreign protection order" has
the meaning set forth in
IC 34-6-2-48.5.
Sec. 5. As used in this chapter, "Indian tribe" has the meaning
set forth in
IC 34-6-2-66.7.
Sec. 6. As used in this chapter, "protective order" has the
meaning set forth for "protection order" in
IC 34-6-2-121.6.
Sec. 7. As used in this chapter, "sexual assault" means conduct
that is:
(1) prohibited by
IC 35-42-4
(sex crimes),
IC 35-44-7
(sexual
misconduct by a service provider with a detainee), or
IC 35-46-1-3
(incest);
(2) prohibited by a misdemeanor or felony under the laws of
the United State, a state, or an Indian tribe that is
substantially similar to an offense described in subdivision
(1); or
(3) an attempt to engage in conduct described in subdivision
(1) or (2);
regardless of whether the conduct results in criminal prosecution
or the person who engages in the conduct is an adult.
Sec. 8. As used in this chapter, "stalking" means conduct that is:
(1) prohibited by
IC 35-45-10-5
(stalking);
(2) prohibited by a misdemeanor or felony under the laws of
the United State, a state, or an Indian tribe that is
substantially similar to an offense described in subdivision
(1); or
(3) an attempt to engage in conduct described in subdivision
(1) or (2);
regardless of whether the conduct results in criminal prosecution
or the person who engages in the conduct is an adult.
Sec. 9. Notwithstanding any other law, the clerk may not collect
a fee or other reimbursement for the filing, issuance, registration,
or service of any of the following:
(1) A warrant related to an action for a protective order or to
enforce a foreign protection order.
(2) A motion, petition, or complaint for a protective order or
to enforce a foreign protection order.
(3) A protective order or an order enforcing a foreign
protection order.
(4) A witness subpoena related to an action for a protective
order or to enforce a foreign protection order.
If a person seeks a protective order or an order enforcing a foreign
protection order as part of another proceeding, the clerk may not
collect a separate fee or reimbursement for the filing, issuance,
registration, or service of the papers described in subdivisions (1)
through (4).
Sec. 10. Prepayment of costs described in section 9 of this
chapter are not required if the person, or a person acting on the
person's behalf, alleges under oath or affirmation in the motion,
petition, or complaint seeking the protective order or order
enforcing a foreign protection order that the person is or fears that
the person will be a victim of domestic violence, sexual assault, or
stalking.
Sec. 11. Unless the court finds evidence of fraud, the court shall
waive the obligation that the person seeking the protective order or
order enforcing a foreign protection order would otherwise have
to pay the costs described in section 9 of this chapter if:
(1) the person, or another person acting on the person's
behalf, makes the allegations described in section 10 of this
chapter; or
(2) the court otherwise determines that the person is a person
seeking protection from domestic violence, sexual assault, or
stalking.
Sec. 12. This section does not prevent the collecting of costs from
a party against whom a protective order or order enforcing a
foreign protection order is sought.".
SOURCE: Page 11, line 32; (01)AM187401.11. -->
Page 11, line 32, after "($100)" delete "," and insert ".".
Page 11, line 32, strike "except as provided in subsection".
Page 11, line 32, delete "(b)," and insert "(b).".
Page 11, delete line 33.
Page 11, line 34, strike "(b)".
Page 11, line 34, delete "Subject to
IC 34-26-2-4
, for" and insert
"For".
Page 11, line 34, strike "each proceeding for the issuance".
Page 11, strike lines 35 through 42.
Page 12, strike lines 1 through 7.
Page 12, line 8, strike "(c)" and insert " (b)".
Page 12, delete lines 19 through 35.
Page 13, line 18, after "48.5" delete "and" and insert " ,".
Page 13, line 18, after "71.7" insert " , and 121.6".
Page 14, line 12, after "121.6." insert " (a)".
Page 14, line 15, delete "under the domestic violence laws".
Page 14, line 16, after "in" insert ":".
Page 14, line 16, delete "violent or", begin new line block indented
and insert:
" (1) violent or threatening acts against;
(2) harassment of;
(3) contact or communication with; or
(4) physical proximity to;
another person, including temporary and final orders issued by
civil and criminal courts.
(b) The term does not include a support or child custody order
issued under the dissolution and child custody laws of a state or
Indian tribe, except to the extent that the order is entitled to full
faith and credit under a federal law other than 18 U.S.C. 2265.
(c) The term applies to an order regardless of whether the order
is obtained by filing an independent action or as a pendente lite
order in another proceeding if any civil order was issued in
response to a complaint, petition, or motion filed by or on behalf of
a person seeking protection.".
Page 14, delete lines 17 through 18.
Page 17, between lines 12 and 13, begin a new paragraph and insert:
SOURCE: IC 34-26-2-1; (01)AM187401.36. -->
"SECTION 36.
IC 34-26-2-1
IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2001]: Sec. 1. A person may
petition any court of record or a small claims court established under
IC 33-11.6-1-3
for a protective order on behalf of that person or a
member of the petitioner's household.
SOURCE: IC 34-26-2-2; (01)AM187401.3. -->
SECTION 3.
IC 34-26-2-2
IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2001]: Sec. 2. The petition:
(1) must include the name of the petitioner and the name and
address (if known) of the respondent;
(2) must include,
on a separate or detachable nonconfidential
form prescribed or approved by the division of state court
administration:
(A) any allegation concerning the date or manner of specific
acts or feared acts of abuse, harassment, or disruption of the
peace of the petitioner or members of the petitioner's
household or any allegations concerning specific damage to or
the fear of damage to any property of the petitioner; and
(B) if the petitioner is requesting that the respondent
refrain from entering or damaging real property, an
indication of whether the petitioner knows or believes that
the petitioner and the respondent are disputing who owns,
or has a lease or easement to use, the real property;
(3) must include a request that, if the court grants the protective
order, the court shall order the respondent:
(A) to refrain from abusing, harassing, or disturbing the peace
of the petitioner, by either direct or indirect contact;
(B) to refrain from abusing, harassing, or disturbing the peace
of a member of the petitioner's household, by either direct or
indirect contact;
(C) to refrain from entering the property of the petitioner,
jointly owned or leased property of the petitioner and
respondent if the respondent is not the sole owner or lessee, or
any other property as specifically described in the petition;
(D) to refrain from damaging any property of the petitioner;
(E) if the petitioner and respondent are married and if a
proceeding for dissolution of marriage or legal separation is
not pending:
(i) to be evicted from the dwelling of the petitioner if the
respondent is not the sole owner or lessee of the petitioner's
dwelling;
(ii) to not transfer, encumber, damage, conceal, or otherwise
dispose of property jointly owned with the petitioner or that
is an asset of the marriage;
(iii) to pay child support to the custodian of any minor
children of the parties alone or with the other party;
(iv) to pay maintenance to the other party; or
(v) to perform a combination of acts listed in items (i)
through (iv);
(4) must be sworn to by the petitioner;
(5) must include a request that the court set a date for a protective
order hearing under this chapter;
(6) must be accompanied by a confidential form concerning
protective orders prescribed or approved by the division of state
court administration; and
(7) may include a request that the court order counseling or other
social services, including domestic violence education, for the
petitioner, the respondent, or both.".
SOURCE: Page 17, line 14; (01)AM187401.17. -->
Page 17, line 14, delete "A petitioner is" and insert " The court:
(1) shall order the clerk of the court to waive any filing fees
required for a proceeding under this chapter if
IC 33-19-4.5
applies; and
(2) may order filing fees to be paid by the respondent after a
hearing held under this chapter.".
Page 17, delete lines 15 through 27.
Page 17, delete lines 35 through 42.
Page 18, delete lines 1 through 16.
Page 18, between lines 16 and 17, begin a new paragraph and insert:
SOURCE: IC 34-26-2-6; (01)AM187401.33. -->
"SECTION 33.
IC 34-26-2-6
IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2001]: Sec. 6. (a) The emergency
protective order issued under section 5 of this chapter may direct the
respondent to refrain from:
(1) abusing, harassing, or disturbing the peace of the petitioner by
either direct or indirect contact;
(2) abusing, harassing, or disturbing the peace of a member of the
petitioner's household, by either direct or indirect contact;
(3) entering the property of the petitioner or any other property as
specifically described in the petition; or
(4) damaging any property of the petitioner.
(b) If the court determines on the face of the petition that the
petition for a protective order arises out of a dispute over who
owns, or has a lease or an easement to use, real property, the court
may:
(1) issue an emergency protective order under subsection (a)
without an order under subsection (a)(3); or
(2) deny the emergency protective order, if the likelihood of
future abuse or harassment is insubstantial.
SOURCE: IC 34-26-2-11; (01)AM187401.34. -->
SECTION 34.
IC 34-26-2-11
IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2001]: Sec. 11. (a) When a petition
is filed, the clerk shall issue a summons to appear at a hearing to the
respondent that:
(1) gives notice of the date, time, and place of the hearing; and
(2) informs the respondent that the respondent must appear before
the court to answer the petition.
(b) The clerk shall serve the respondent with:
(1) the summons to appear; and
(2) a copy of the nonconfidential for submitted as part of the
petition under section 2(2) of this chapter;
in accordance with Rule 4.1 of the Rules of Trial Procedure.
(c) Before complying with subsection (b)(2), the clerk shall
separate the nonconfidential form submitted under section 2(2) of
this chapter from the remainder of the petition.
SOURCE: IC 34-26-2-12; (01)AM187401.35. -->
SECTION 35.
IC 34-26-2-12
, AS AMENDED BY P.L.14-2000,
SECTION 70, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2002]: Sec. 12.
(a) A court shall set a date for a hearing
concerning a petition described in section 2 of this chapter not more
than thirty (30) days after the date the petition is filed with the court.
At the hearing, if at least one (1) of the allegations described in the
petition is proved by a preponderance of the evidence, the court:
(1) shall order the respondent:
(A) to refrain from abusing, harassing, or disturbing the peace
of the petitioner, by either direct or indirect contact;
(B) to refrain from abusing, harassing, or disturbing the peace
of a member of the petitioner's household, by either direct or
indirect contact;
(C) to refrain from entering the property of the petitioner,
jointly owned or leased property of the petitioner and the
respondent if the respondent is not the sole owner or lessee, or
any other property as specifically described in the petition;
(D) to refrain from damaging any property of the petitioner;
and
(E) if the petitioner and respondent are married and if a
proceeding for dissolution of marriage or legal separation is
not pending:
(i) to be evicted from the dwelling of the petitioner if the
respondent is not the sole owner or lessee of the petitioner's
dwelling;
(ii) to not transfer, encumber, damage, conceal, or otherwise
dispose of property jointly owned with the petitioner or that
is an asset of the marriage;
(iii) to pay child support to the custodian of any minor
children of the parties alone or with the other party;
(iv) to pay maintenance to the other party; or
(v) to perform a combination of the acts described in items
(i) through (iv);
(2) may order the respondent to refrain from possessing a firearm
(as defined in
IC 35-47-1-5
) during a period not longer than the
period that the respondent is under the protective order if the
court finds by clear and convincing evidence that the respondent
poses a significant threat of inflicting serious bodily injury to the
petitioner or a member of the petitioner's household or family; and
(3) may order counseling or other social services, including
domestic violence education, for the petitioner or the respondent,
or both, and may order the respondent to pay the costs of
obtaining counseling or other social services for the petitioner or
the respondent, or both.
If the court prohibits the respondent from possessing a firearm under
subdivision (2), the court shall notify the state police department of the
restriction. The court may also order the confiscation under
IC 35-47-3
of any firearms that the court finds the respondent to possess during the
period that the protective order is in effect.
(b) If the court determines that the petition for a protective
order arises out of a dispute over who owns, or has a lease or an
easement to use, real property, the court may:
(1) issue a protective order under subsection (a) without an
order under subsection (a)(1)(C) or (a)(1)(D), or both; or
(2) deny the petition for a protective order, if the likelihood of
future abuse or harassment against a petitioner is
insubstantial.
SOURCE: IC 34-26-2-18; (01)AM187401.36. -->
SECTION 36.
IC 34-26-2-18
IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2001]: Sec. 18. If a respondent is ordered to
stay away from a petitioner, an invitation by a petitioner to a
petitioner's residence or other place where a petitioner is located,
does not:
(1) allow the respondent to go to the residence or other place
where a petitioner is located; or
(2) waive or nullify any relief provided by the court in the
order of protection.".
SOURCE: Page 19, line 27; (01)AM187401.19. -->
Page 19, line 27, delete "No" and insert "
If
IC 33-19-4.5
applies to
the protected individual, no".
Page 29, line 25, after "clerks;" insert "
and
(3) approve or prescribe nonconfidential forms required
under
IC 34-26-2-2
(2), as amended by this act;".
Page 29 line 26, after "2001." insert "
The forms described in
subdivision (3) must be designed with a format that allows for the
easy separation of confidential information concerning the
petitioner from information that a respondent needs to prepare a
defense to the allegations raised by the petition.".
Page 29, between lines 26 and 27, and begin a new paragraph and
insert:
"
(b)
IC 5-2-9-7
,
IC 34-26-2-2
,
IC 34-26-2-6
,
IC 34-26-2-11
, and
IC 34-26-2-12
, all as amended by this act, apply only to petitions
for issuance of a protective order filed with a court after June 30,
2001.
(c) The legislative council shall appoint an interim study
commission on criminal law to make a study of the protective
orders issued for crimes of domestic and family violence.
(d) The legislative council is urged to assign the study of
protective orders issued for crimes of domestic and family violence
to the interim study commission on criminal law. The study shall
be completed before the commencement of the 2002 legislative
session.
(e) The interim study commission on criminal law shall operate
under the direction of the legislative council, and shall issue a final
report when directed to do so by the council.
(f) The affirmative votes of a majority of the members
appointed to the commission are required for the commission to
take any official action, including final reports.
(g) Notwithstanding
IC 5-2-5-12
(a)(5), the state police
department has until January 1, 2002 to modify its computer
system to allow for the entry of foreign protection orders into the
Indiana data and communication system (IDACS).".
Page 29, line 27, delete "(b)" and insert "
(g)".
Renumber all SECTIONS consecutively.
(Reference is to HB 1874 as introduced.)
and when so amended that said bill do pass.
__________________________________
AM187401/DI 105 2001