Summary of the Perfected Version of the Bill

HCS HB 1256 -- JUDICIAL PROCEDURES (Diehl)

COMMITTEE OF ORIGIN: Committee on Judiciary

This substitute changes the laws regarding judicial procedures.

JOINT COMMITTEE ON CHILD ABUSE AND NEGLECT (Section 21.771, RSMo)

 

The Joint Committee on Child Abuse and Neglect of the General

Assembly is established composed of seven members of the House of

Representatives appointed by the Speaker and Minority Floor

Leader and seven members of the Senate appointed by the President

Pro Tem and the Minority Floor Leader.

The joint committee is required to:

(1) Make a continuing study and analysis of the state child

abuse and neglect reporting and investigation system;

(2) Devise a plan for improving the structured decision making

regarding the removal of a child from a home;

(3) Determine the additional personnel and resources necessary

to adequately protect children in this state and improve their

welfare and the welfare of families;

(4) Address the need for additional foster care homes and to

improve the quality of care provided to abused and neglected

children in the custody of the state;

(5) Determine from its study and analysis the need for changes

in statutory law;

(6) Make any recommendation to the General Assembly necessary to

provide adequate protection for the children of our state;

(7) Meet within 30 days after its creation and select a

chairperson and a vice chairperson and meet quarterly thereafter;

and

(8) Compile a full report of its activities for submission to

the General Assembly by January 15 of each year that the General

Assembly convenes in regular session.

These provisions expire January 15, 2018.

DRIVER’S REGISTRATION AND MOTOR VEHICLE RECORDS (Section 32.056)

Currently, the Department of Revenue is prohibited from releasing

the home address or any other information contained in the department’s motor vehicle or driver registration records on

specified groups of individuals. The substitute adds any state

or federal judge or his or her immediate family members to those

groups and specifies that the department cannot release any

information that identifies any vehicle owned or leased by the

specified groups in its records.

CRIMINAL CASE SURCHARGE (Sections 56.807 and 488.026)

Currently, a $4 surcharge is assessed in all criminal cases

including any violation of a county ordinance and any criminal or

traffic law including infractions for deposit into the Missouri

Prosecuting Attorneys and Circuit Attorneys’ Retirement System

Fund except under certain circumstances. The substitute removes

the provision which specifies that no surcharge will be assessed

against a person who has pled guilty and paid his or her fine

through a fine collection center and requires this individual to

pay the $4 surcharge.

ADMINISTRATIVE FINES OR COSTS (Section 67.136)

Any local governmental agency is allowed to utilize collection

agencies to collect any court or administrative fines or costs

associated with a criminal conviction or entry of a civil

judgment.

GREENE COUNTY ASSOCIATE CIRCUIT COURT JUDGES (Section 67.2010)

Associate circuit court judges in Greene County are allowed to

hear and determine county ordinance violations.

TRAFFICKING DRUGS (Sections 195.222 and 195.223)

Currently, a person commits the crime of trafficking drugs in the

first degree if he or she distributes, delivers, manufactures,

produces or attempts to distribute, deliver, manufacture, or

produce more than two grams of crack cocaine. The substitute

raises the quantity required to 28 grams. If the quantity

involved is more than 28 grams but less than 280 grams, the

person must be sentenced to the authorized term of imprisonment

for a class A felony. If the quantity is 280 grams or more, the

person must be sentenced to the authorized term of imprisonment

for a class A felony with no probation or parole.

Currently, a person commits the crime of trafficking drugs in the

second degree if he or she possesses or has under his or her

control, purchases or attempts to purchase, or brings into this

state more than two grams of crack cocaine. The substitute

raises the quantity required to 28 grams. If the quantity

involved is more than 28 grams but less than 280 grams, the person will be guilty of a class B felony. If the quantity is

280 grams or more, the person will be guilty of a class A felony.

FOSTER CARE LICENSURE INFORMATION (Section 210.567)

A public governmental body may close meetings, records, and votes

if they relate to personal information obtained in the process of

licensing a foster home. The Division of Family Services within

the Department of Social Services must make a report available

for each foster home that is licensed and for each foster home

renewing an existing license which includes:

(1) The names of all persons 18 years of age or older licensed

to operate the foster home and the amount of state funds paid to

the operator for foster care services;

(2) A description of the background investigation conducted on

all persons operating or maintaining the foster home including

certain specified documentation;

(3) A description of all concerns raised during the background

investigation and foster home licensure process and how those

concerns were resolved;

(4) A description of a person’s ability to perform the minimum

competency requirements of a foster parent;

(5) A list of all references provided by each person, stating

the reference’s name, how and when the reference was contacted,

and a brief description of the reference’s opinion of the person;

(6) The number of the operator’s previous care assignments, if

any; and

(7) Any history of previous complaints involving the foster care

operator or the foster child.

The report must not contain the address of any residence or any

personal information not otherwise required which could be used

by another to threaten, harm, harass, or embarrass any person,

and it must not contain any information that is otherwise closed,

confidential, or privileged.

JUVENILE COURT JURISDICTION (Section 211.031)

The age when the juvenile court will have jurisdiction over a

child involving a state or local traffic violation is changed

from a child up to 15 1/2 years of age to a child up to 15 years

of age.

TERMINATION OF PARENTAL RIGHTS (Sections 211.093, 211.177,

452.374, and 452.402)

The substitute prohibits a person who commits an act of rape from

obtaining custody or visitation rights to the child who is the

product of the rape, and no parent of the person can have

standing as a grandparent or otherwise be permitted to file an

action for custody or visitation during pending court

proceedings.

PERFECTION OF SECURITY INTERESTS (Section 400.9-311)

The filing of a financing statement is necessary to perfect a

security interest in collateral that is inventory held for sale

or lease by a person or leased by that person as lessor and that

person is in the business of selling goods of that kind. 

ADOPTION PROCEEDINGS (Section 453.030, 453.050, and 453.080)

A written consent to adoption is allowed to be executed in front

of a judge and requires the judge to advise the consenting birth

parent of the consequences of the consent. A consent to adoption

is final when executed unless the consenting party, prior to a

final decree of adoption, alleges and proves by clear and

convincing evidence that the consent was not freely and

voluntarily given. The consenting party bears the burden of

proving the consent was not freely and voluntarily given. A

consent to an adoption must have been executed not more than six

months prior to the date the petition for adoption is filed.

The substitute requires a court conducting a final adoption

hearing to determine whether the court has received and reviewed

an investigation report required under Section 453.070, if any,

and an investigation and social study required under Section 211.455, if any.

By January 1, 2013, the Missouri Supreme Court must develop a

standardized form to be used in all adoption cases which includes

a checklist to verify that all the documents and procedures

required by law have been submitted, followed, and reviewed by

the judge prior to the entry of a final order. The form and

attachments must be included as part of the adoption record.

QUALIFIED SPOUSAL TRUSTS (Section 456.950)

The substitute changes the requirements for a qualified spousal

trust to allow the trust to consist of both property held in one

trust for both spouses and property held in two shares in one

trust for each spouse.

MISSOURI UNIFORM TRUST CODE (Section 456.8-808)

The substitute changes the laws regarding the Missouri Uniform

Trust Code by allowing a trust instrument to appoint a trust

protector who is expressly granted one or more powers over the

trust in the trust instrument. The substitute:

(1) Specifies the express powers that may be granted to a trust

protector;

(2) Specifies when a trust protector has no power to modify a

trust;

(3) Specifies that the trust protector must not exercise a power

that would result in a taxable gift for federal gift tax purposes

or cause the inclusion of any assets of the trust in the trust

protector’s gross estate for federal estate tax purposes;

(4) Specifies that a trust protector is not a trustee, is not

liable or accountable as a trustee or fiduciary when performing

or declining to perform the express powers given in the trust

instrument, and is not liable for the acts or omissions of any

fiduciary or beneficiary under the trust instrument;

(5) Exonerates a trust protector from all liability for his or

her acts or omissions or arising from any exercise or non-exercise of the express powers given in the trust instrument

unless it is established by a preponderance of the evidence that

the acts or omissions were done or omitted in breach of the

protector’s duty, in bad faith, or with reckless indifference;

(6) Authorizes a trust protector to exercise the express powers

granted in the trust instrument at any time after the trust

protector acquires knowledge of his or her appointment as trust

protector and of the powers granted;

(7) Allows the trust protector to receive from the assets of the

trust reasonable compensation and reimbursement of reasonable

costs and expenses incurred in determining whether to carry out

and in carrying out the express powers of the trust instrument;

(8) Allows the trust protector to receive from the assets of the

trust reimbursement of the reasonable costs and expenses,

including attorney fees, of defending any claim made against the

trust protector arising from his or her acts or omissions while

acting in that capacity unless it is established by clear and

convincing evidence that the protector was acting in bad faith or

with reckless indifference;

(9) Prohibits the trust protector from exercising the express powers granted in the trust instrument for his or her own

personal benefit;

(10) Specifies that a trustee must not be liable for any loss

resulting directly or indirectly from any act taken or omitted as

a result of the written direction of the trust protector or the

failure of the trust protector to provide consent, unless there

is bad faith or reckless indifference on the part of the trustee;

(11) Specifies when the trust protector is entitled to receive

information regarding the administration of the trust;

(12) Allows a trust protector to resign by giving 30 days’

written notice to the trustee and any successor trust protector;

(13) Grants any successor trust protector the same powers

expressly granted in the trust instrument to the resigning trust

protector unless those powers are expressly modified for the

successor trust protector; and

(14) Specifies that a trust protector of a trust having its

principal place of administration in Missouri submits personally

to the jurisdiction of the courts of Missouri while the trust is

being administered in this state.

STATEWIDE COURT AUTOMATION FUND (Section 476.055)

Currently, the provisions regarding the fee assessed in certain

court cases which is to be deposited into the Statewide Court

Automation Fund expire on September 1, 2013. The substitute

extends the expiration date to September 1, 2018. The Court

Automation Committee is required to complete its duties by

September 1, 2020. Currently, the committee must complete its

duties prior to September 1, 2015.

ADMINISTRATIVE ADJUDICATION SYSTEM (Section 479.011)

Any home rule city with more than 155,000 but less than 200,000

inhabitants may establish an administrative adjudication system.

MUNICIPAL ORDINANCE VIOLATIONS (Section 479.040)

Currently, a city, town, or village with less than 400,000

residents can choose to have violations of its municipal

ordinances heard and determined by either a county municipal

court or an associate circuit court, and once the choice is made,

all municipal ordinance violations will be heard by that court.

The substitute authorizes a city, town, or village to elect to

have violations involving an accused with special needs due to

mental disorder or mental illness, or whose special needs, circumstances, and charges cannot adequately be accommodated by

the municipal court to be heard and determined by the associate

circuit court or county municipal court. The associate circuit

court or county municipal court must be able to provide adequate

accommodations and resources for specifically handling these

matters and must consent to the transfer.

ST. LOUIS CITY CIRCUIT CLERK (Section 483.015)

 

Currently, the circuit clerk in the 22nd Judicial Circuit for the

City of St. Louis is elected by the qualified voters of the city.

The substitute requires him or her to be appointed by a majority

of the circuit judges and associate circuit judges of the circuit

court, en banc. The clerk will be removable for cause by a

majority of the circuit judges and associate judges of the

circuit, en banc, in accordance with Supreme Court administrative

rules governing court personnel. The elected circuit clerk that

is holding office when these provisions become effective must

continue to hold office for the duration of his or her elected

term.

SURCHARGE IN CIVIL COURT CASES (Section 488.426)

 

The circuit court in any circuit, except the circuit court in

Jackson County or the circuit court in any circuit that

reimburses the state for the salaries of family court

commissioners under Section 487.020, is allowed to change the

surcharge in civil actions to any amount up to $15. Currently,

the only exception allowed is the circuit court in Jackson

County.

The circuit court in Jackson County or the circuit court in any

circuit that reimburses the state for the salaries of family

court commissioners is authorized to change the surcharge in

civil actions to any amount up to $20.

FEES FOR COURT TRANSCRIPTS (Section 488.2250)

Currently, for all transcripts of testimony given or proceedings

in a circuit court, the court reporter must receive $2 per 25-line page for the original of the transcript and 35 cents per 25-line page for each additional copy. The substitute specifies

that in cases where an appeal is taken, the court reporter must

receive $3.50 per 25-line page for the original and up to three

copies of the transcript and 50 cents per 25-line page for each

additional copy. In criminal cases where an appeal is taken and

the court determines the defendant is unable to pay the costs of

the transcript, the court must order the court reporter to

provide three paper or electronic copies of the transcript.

Currently, the reporter must receive $2 per legal page and 20 cents per page for the copies. The substitute specifies that the

court reporter must receive $2.60 per legal page and 20 cents per

page for each additional copy. An electronic version of all

transcripts must be provided. All transcripts must be provided

by a court reporter certified by the Missouri Supreme Court.

CHARGES FOR LAW ENFORCEMENT SERVICES (Section 488.5320)

Currently, law enforcement officers are allowed to charge for

their services rendered in criminal cases and in all contempt or

attachment proceedings except for cases disposed of by a traffic

violation bureau. The substitute removes the exception and

allows them to also charge for cases disposed of by a central

violations bureau. However, those cases disposed of by a central

violations bureau must be distributed so that one-half of the

charges collected are deposited into the newly-created MODEX Fund

for the operational support and expansion costs of the MODEX

system and one-half of the charges collected are deposited into

the inmate security fund of the county or municipal political

subdivision where the citation originated. If the county or

municipal political subdivision has not established an inmate

security fund, the funds must be deposited in the MODEX Fund.

SEXUAL OFFENSES (Section 488.5375)

The substitute allows the court to order a defendant, upon a plea

of guilty or a finding of guilt for a felony sexual offense in

which a computer, cellular telephone, or other electronic devices

were seized to reimburse the state or local law enforcement

agency for the reasonable costs incurred in the examination of

the seized items.

PROPERTY EXEMPT FROM ATTACHMENT (Sections 513.430 and 513.440)

The substitute specifies how fraud will be defined when

determining if certain funds must be held exempt from a

bankruptcy proceeding.

Currently, each head of a family may exempt from attachment $350

for each of the person’s unmarried dependent children under 18

years old. The substitute raises the age to a child under 21

years old.

LANDOWNER LIABILITY TO TRESPASSERS (Sections 537.345, 537.346,

and 537.351)

The substitute changes the laws regarding a landowner’s liability

as it applies to an individual trespassing on the owner’s land

by:

(1) Defining “trespasser,” as it applies to these provisions, as

any person who enters on the property of another without

permission and without an invitation, express or implied,

regardless of whether actual notice of trespass was given or the

land was posted with signs or purple markings in accordance with

Sections 569.140 and 569.145; and

(2) Specifying that a possessor of real property owes no duty of

care to a trespasser, except to refrain from harming the

trespasser by an intentional, willful, or wanton act and may use

justifiable force to repel a criminal trespasser. However, a

possessor of real property may be subject to liability for

physical injury or death to a trespasser in specified situations,

including if the trespasser is a child who is harmed by a

dangerous artificial condition on the land, the possessor knew or

should have known that trespassers consistently intrude upon a

limited area of the land where the trespasser was harmed by a

dangerous artificial condition on the land, or the possessor knew

of the trespasser’s presence on the land and failed to exercise

ordinary care as to active operations carried out on the land.

CONDUCT AT PUBLIC MEETINGS (Section 537.528)

Currently, any action seeking monetary damage against a person

for conduct or speech at a public hearing or meeting is subject

to a special motion to dismiss, a motion for judgment on the

pleadings, or a motion for summary judgment so it can be

considered on an expedited basis to prevent the unnecessary

expense of litigation. The substitute allows any action against

a person for conduct or speech at a public hearing or meeting to

be subject to these special motions.

 

UNCLAIMED SEIZED PROPERTY (Section 542.301)

The substitute specifies that computers, computer equipment,

computer software and hardware, cellular telephones, or other

devices capable of accessing the Internet which are used by the

owner or with the owner’s consent as a means for committing

felonies must be forfeited to the state;

Upon a court order, a law enforcement agency in possession of

computers, computer equipment, computer software and hardware,

cellular telephones, or other devices capable of accessing the

Internet or other devices used in the acquisition, possession, or

distribution of child pornography or obscene material is allowed

to retain possession of the property and convert it to the use of

the agency for use in criminal investigations.

SENTENCING ADVISORY COMMISSION (Section 558.019)

The substitute specifies that the provisions regarding the

Sentencing Advisory Commission cannot be construed to allow the

commission to issue recommended sentences in specific cases

pending in the courts of this state.

RESTITUTION (Sections 559.100, 559.105, and 570.120)

The substitute requires restitution to be paid through the office

of the prosecuting or circuit attorney. Each prosecuting or

circuit attorney who takes any action to collect restitution must

assess the person paying restitution an administrative handling

cost of $25 for restitution in an amount of less than $100, $50

for an amount between $100 and $249, and an additional fee of 10%

of the total restitution for an amount of $250 or more. The

maximum fee for administrative handling costs cannot exceed $75.

A $2 installment cost must also be assessed for each installment

payment, except for the first installment, until the amount of

restitution is paid in full.

 

The moneys collected by the prosecuting or circuit attorney must

be deposited into the newly created Administrative Handling Cost

Fund to be expended by the prosecuting or circuit attorney for

office supplies and equipment, capital outlay, trial preparation

expenses, additional staff, and employees’ salaries.

In addition to the administrative handling cost, the prosecuting

or circuit attorney must collect $5 for each crime victim to whom

restitution is paid to be deposited into the Missouri Office of

Prosecution Services Fund.

Court-ordered restitution may be taken from an inmate’s account

at the Department of Corrections while the inmate is

incarcerated; and upon release from imprisonment, the payment of

any unpaid balance may be collected as a condition of conditional

release or parole.

SEXUAL MISCONDUCT INVOLVING A CHILD (Section 566.083)

The crime of sexual misconduct involving a child is revised to

include when a person knowingly coerces or induces a child who is

known by the person to be younger than 15 years of age to expose

a female child’s breasts through the Internet or other electronic

means for the purpose of arousing or gratifying the sexual desire

of any person, including the child.

ENTICEMENT OF A CHILD (Section 566.151)

The current crime of enticement of a child is changed to the

crime of enticement of a child in the first degree.

FIRST DEGREE PROPERTY DAMAGE (Section 569.100)

 

The substitute revises the crime of property damage in the first

degree to include when a person knowingly damages a motor vehicle

of another while making entry into the vehicle for the purpose of

committing the crime of stealing or the damage occurs while

committing the crime of stealing within the vehicle. Anyone who

commits this crime will be guilty of a class C felony unless it

is a subsequent violation in which case he or she will be guilty

of a class B felony.

FISCAL NOTE: Estimated Net Effect on General Revenue Fund of an

income of Unknown could exceed $100,000 to a cost of Less than

$100,000 in FY 2013, FY 2014, and FY 2015. Estimated Net Effect

on Other State Funds of an income of Unknown to a cost of Up to

$100,000 in FY 2013, FY 2014, and FY 2015.

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