H 3051 Session 110 (1993-1994)
H 3051 General Bill, By J.L.M. Cromer
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Section
22-3-15 so as to authorize magistrates to issue and enforce temporary
restraining orders of not more than sixty days.
01/12/93 House Introduced and read first time HJ-31
01/12/93 House Referred to Committee on Judiciary HJ-31
02/09/94 House Committee report: Favorable with amendment
Judiciary HJ-17
02/22/94 House Debate adjourned until Thursday, February 24,
1994 HJ-24
02/24/94 House Amended HJ-402
02/24/94 House Read second time HJ-406
02/24/94 House Unanimous consent for third reading on next
legislative day HJ-406
02/25/94 House Read third time and sent to Senate HJ-1
03/01/94 Senate Introduced and read first time SJ-7
03/01/94 Senate Referred to Committee on Judiciary SJ-7
Indicates Matter Stricken
Indicates New Matter
AMENDED
February 24, 1994
H. 3051
Introduced by REP. Cromer
S. Printed 2/24/94--H.
Read the first time January 12, 1993.
A BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976,
BY ADDING SECTION 22-3-15 SO AS TO AUTHORIZE
MAGISTRATES TO ISSUE AND ENFORCE TEMPORARY
RESTRAINING ORDERS OF NOT MORE THAN SIXTY DAYS.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Chapter 3 of Title 22 of the 1976 Code is amended
by adding:
"Article 15
Proceedings for Magistrate Court
Restraining orders
Section 22-3-1510. This article may be cited as the `Magistrate
Court Restraining Order Act.'
Section 22-3-1520. As used in this article:
(1) `Abuse' means:
(a) physical harm, bodily injury, assault, the threat of physical
harm, the destruction of personal property, or damages to real
property;
(b) sexual criminal offenses, as defined by statute;
(2) `Family or household member' means spouses, former spouses,
parents, children, and persons related by consanguinity or affinity
within the second degree.
(3) `Court' means the magistrate court.
(4) `Petitioner' means the person alleging abuse in a petition for
a magistrate court restraining order.
(5) `Respondent' in a petition for a magistrate court restraining
order means the person alleged to have abused another or a person
alleged to have aided or abetted the abuse.
(6) `Magistrate court restraining order' means an order issued to
protect the petitioner or minor family or household members from the
abuse of another person, where the respondent has received notice of
the proceedings and has had an opportunity to be heard.
Section 22-3-1530. (A) A magistrate may issue a magistrate court
restraining order granting only the relief provided by Section 22-3-1560.
A person violating the terms and conditions of an order of
protection issued under this article is guilty of a misdemeanor and,
upon conviction, must be fined not more than five hundred dollars or
imprisoned not more than thirty days.
(B) Actions for a magistrate court restraining order must be filed
in the county in which the:
(1) respondent resides at the time of commencement of the
action; or
(2) petitioner resides if the respondent is a nonresident of this
State or if he is not found after due diligence.
Section 22-3-1540. A petition for a magistrate court restraining
order is created to be used in cases of abuse. A petition for relief
under this section:
(1) may be made by a person in need of protection from the
actions of another person or from threats by another person of
physical harm or harm to that person's personal or real property, or by
a family or household member on behalf of a minor family or
household member in need of protection from the actions of another
person or from threats by another person of physical harm or harm to
that person's personal or real property;
(2) must be verified and must allege the existence of abuse
stating the specific time, place, and details of the abuse and other facts
and circumstances upon which relief is sought;
(3) must inform the respondent of the right to retain counsel.
Section 22-3-1550. (A) A hearing must be held within fifteen days
of the filing of a petition for a magistrate court restraining order,
unless an emergency hearing is held earlier as provided in subsection
(B). A magistrate shall cause a copy of the petition and requests or
attachments to be served upon the respondent at least five days before
the hearing, except as provided in subsection (B), in the same manner
required for service in the circuit courts. Where service is not
accomplished five days before the hearing, the respondent, upon
motion, is entitled to a continuance to provide for compliance with
this section.
(B) Upon a prima facie showing of immediate and present danger
of bodily injury or destruction of personal property or damages to real
property to the petitioner or minor household or family member of the
petitioner, as evidenced by affidavit attached to a written request filed
with the petition, the court shall grant an emergency hearing. The
court shall rule upon the request within twenty-four hours after it is
filed and shall schedule an emergency hearing to be held within forty-eight hours of the filing of the request.
Section 22-3-1560. A magistrate court restraining order granted
under this article must protect the petitioner or the abused person on
whose behalf the petition was filed and may include provisions
temporarily enjoining the respondent from:
(1) abusing, threatening to abuse, or molesting the petitioner or the
person on whose behalf the petition was filed;
(2) communicating or attempting to communicate with the
petitioner or the person on whose behalf the petition was filed in a
way to violate this article;
(3) entering or attempting to enter the petitioner's residence or his
place of employment or education or another location the court may
order. The order may not prohibit a respondent from entering or
attempting to enter a location that also was respondent's residence or
place of employment or education when the action was commenced;
(4) destroying the personal property or damaging the real property
of the petitioner or person on whose behalf the petition was filed.
Section 22-3-1570. A magistrate court restraining order issued
pursuant to this article must be for a fixed time not to exceed forty-five days.
Section 22-3-1580. The magistrate shall cause to be mailed or
served upon the petitioner, the respondent, and local law enforcement
agencies having jurisdiction in the area where the petitioner resides a
certified copy of a magistrate court restraining order.
Section 22-3-1590. The primary duty of a law enforcement officer
when responding to an incident of abuse is to enforce the laws
allegedly violated and to protect the abused person if facts are found
which substantiate the complaint. In these incidents the officer shall:
(1) notify the abused person of the right to initiate criminal
proceedings and to seek an order of protection under the Protection
from Domestic Abuse Act or a magistrate court restraining order under
this article;
(2) advise the parties of the importance of preserving evidence.
To provide protection to the petitioner and minor children the officer
may offer or arrange to provide transportation of the abused person to
a hospital for treatment of injuries or to a place of shelter or safety
and to accompany the abused person to his residence to allow for the
removal of clothing, medication, and reasonably necessary personal
property.
Section 22-3-1600. The petitioner's right to relief under this article
is not affected by:
(1) leaving the residence or household to avoid further abuse;
(2) the use of physical force against the respondent reasonably
believed by the petitioner to be necessary to defend the petitioner or
others from imminent physical injury or abuse.
Section 22-3-1610. A proceeding under this article is in addition to
other civil and criminal remedies."
SECTION 2. Section 8-21-1010 of the 1976 Code, as last amended
by Act 678 of 1988, is further amended to read:
"Section 8-21-1010. Except as otherwise expressly provided,
the following fees and costs must be collected by the magistrates and
deposited in the general fund of the county:
(1) for taking civil recognizance, with or without
sureties,: five dollars;
(2) for granting an order for civil special bail, with or
without sureties,: five dollars;
(3) for receiving and filing bond in claim and delivery,
attachment,: five dollars;. If
justification of sureties is required, an additional five dollars
must be collected;
(4) for administering and certifying oaths or documents in
writing,: two dollars;
(5) for issuing any a prerogative
writ,: five dollars;
(6) in all civil actions and in actions filed pursuant to the
`Magistrate Court Restraining Order Act', for issuing a
summons and a copy for defendant, and for giving
judgment with or without a hearing,: twenty-five
dollars;
(7) for issuing execution executions and
renewal thereof, their renewals: ten dollars;
(8) for making up, certifying, and forwarding a transcript
of record and judgment in a case for purpose of
appeal,: ten dollars;
(9) for proceedings by a landlord or lessor against a tenant
or lessee, including notices to quit, eviction orders, or recovery of
rents,: ten dollars;
(10) for proceedings on a coroner's inquest, as prescribed by
law,: ten dollars, if an inquest is demanded by
a party other than the State or county or authorized officer of either;
(11) for proceeding on estrays, including judgment for
possession, sale, or damages,: ten dollars;
(12) for qualifying appraisers to set off homestead or
qualifying sureties on a bond posted in a case, including bail
bonds,: five dollars;
(13) for each tax execution collected,: five
dollars;
(14) for filing or issuing any other paper not
provided for in this section,: five dollars.
No fees or costs may be assessed against a party for summoning
jurors or expense of jury service in a criminal case in which a trial by
jury is had."
SECTION 3. This act takes effect upon approval by the Governor.
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