CCS/SCS#2/SB 128 - This act modifies various provisions regarding criminal offenses, the Attorney General, conservation commission agents, notice issued by the Department of Revenue, child support and custody, ignition interlock devices, trust instruments, a fiduciary's access to digital assets, guardianship, judges, court surcharges, traffic violations, commercial receiverships, standing of the Department of Mental Health in certain cases, bankruptcy, court reporter fees, crime victims, and the Address Confidentiality Program. OFFICIAL MISCONDUCT (29.225, 105.478, 595.219)
This act authorizes the state auditor or his or her authorized representatives to audit all or part of any government entity, upon request by a prosecuting attorney or law enforcement agency.
Violating provisions relating to conflict of interest and lobbying is a Class E felony if the offense involves more than seven hundred and fifty dollars in value, or if the offender has previously been found guilty of official misconduct.
A court may enter a judgment of restitution against an offender and may order the offender to pay restitution against the victim, a government entity, or a third-party payor. The act provides for the determination and enforcement of this restitution.
These provisions are identical to provisions in SCS/HCB 1 (2017) and substantially similar to provisions in SB 176 (2017).
STATE LEGAL EXPENSE FUND (105.713)
The act requires the Attorney General and the Commissioner of Administration to submit to the General Assembly a monthly report of all settlements and judgments paid from the State Legal Expense Fund.
This provision is identical to a provision in SCS/HCB 1 (2017) and similar to HCB 7 (2017) and HB 858 (2017).
PRODUCTION EXEMPTIONS (144.026)
Under current law, the Director of Revenue shall not notify taxpayers of the holding in Missouri Supreme Court decision in IBM Corporation v. Director of Revenue regarding tax exemptions for production of intangible products before August 28, 2017. This act changes the date to August 28, 2018, and also modifies the case citation.
This provision is identical to a provision in the truly agreed to and finally passed version of SB 49 (2017) and in SCS/HCB 1 (2017) and similar to provisions in SB 247 (2017), SB 325 (2017), HCS/SB 332 (2017), HB 938 (2017), and HCS/SB 18 (2017).
CHILD SUPPORT AND CUSTODY (210.845, 452.370, 452.747, 454.500)
The act requires the responding party to file a response to any motion to modify a child support, spousal maintenance, or child custody judgment.
These provisions are identical to provisions in SCS/HCB 1 (2017) and substantially similar to HCS/HB 285 (2017).
CONSERVATION COMMISSION (252.069)
An agent of the Conservation Commission may enforce provisions of law establishing the offense of littering and the offense of abandoning a vehicle only upon the water, the banks thereof, or public land.
This provision is identical to a provision in the truly agreed to and finally passed version of SB 34 (2017), SS/SCS/HCS/HBs 302 & 228 (2017), HCS/HB 1133 (2017), HCB 9 (2017), SCS/HCB 1 (2017), and SB 512 (2017).
IGNITION INTERLOCK DEVICE (302.441)
Current law allows repeat DUI offenders required to have ignition interlock device installed on his or her vehicle to apply for an exemption to allow him or her to operate a vehicle owned by his or her employer. Such variances is not granted where the offender is self-employed or owns the business entity that owns the vehicle.
This act specifies that variances shall also not be granted when the offender controls the business entity that owns the vehicle.
These provisions are identical to provisions in the truly agreed to and finally passed version of HB 115 (2017), the truly agreed to and finally passed version of SB 225 (2017), SCS/HCB 1 (2017), SCS/HB 256 (2017), SS/SCS/HCS/HBs 302 & 228 (2017), and SB 474 (2017), and similar to provisions in HCS/HB 875 (2017) and HCB 9 (2017).
TERMINATION OF A TRUST BY THE TRUSTEE (456.4-414)
Under current law, a trustee of a trust consisting of trust property having a total value of less than $100,000 may terminate the trust if the trustee concludes that the value of the trust property is insufficient to justify the cost of the administration. This act increases the required value of the trust property to less than $250,000 before the trustee can terminate the trust.
This provision is identical to a provision in SCS/HCB 1 (2017) and SCS/HCS/HB 427 (2017).
NO-CONTEST CLAUSES (456.4-420)
This act also provides that a no-contest clause is not enforceable against an interested person filing a motion, pleading, or other claim for relief concerning either a breach of trust by a trustee or for removal of a trustee.
This provision is identical to provisions contained in SCS/HCB 1 (2017), SCS/HCS/HB 427 (2017), SCS/SB 171 (2017), and SB 356 (2017).
TRUST PROTECTOR (456.1-103, 456.8-808)
Currently, a trust may provide for the appointment of a trust protector who is defined as a person other than the settlor, trustee, or beneficiary who is granted one or more powers over the trust. This act provides that a trust may provide for one or more persons, not a trustee, settlor, or beneficiary, to be given any powers over the trust, and such person may be appointed as a trust protector or similar term. The act defines "trust protector" as any person charged in the trust instrument with any responsibilities regarding the trust. When a trust appoints a trust protector then the trust shall be deemed a direct trust, as defined in the act.
A trust protector may take any action necessary in carrying out duties granted to the trust protector in the trust instrument. If the trust has granted the trust protector the authority to direct, consent, or disapprove a trustee's investment decision pursuant to the trust, then the trustee shall not be subject to the provisions of the Missouri Prudent Investor Act when acting pursuant to the trust protector's written directions.
A trustee of a directed trust is not liable for any act or omission of a trust protector or for executing decisions or instructions from a trust protector. Current law provides that a trustee cannot be held liable for any loss resulting from any action taken pursuant to a trust protector's written directions, except in cases of bad faith or reckless indifference on the part of the trustee or as otherwise provided in the trust. This act removes the bad faith or reckless indifference exception to liability immunity for a trustee.
The trust instrument may also provide that a trust protector is subject to the personal jurisdiction of the Missouri courts as a condition of appointment.
These provisions are identical to provisions in SCS/HCB 1 (2017) and SCS/SB 171 (2017) and similar to SB 841 (2016).
MISSOURI FIDUCIARY ACCESS TO DIGITAL ASSETS ACT (472.400 - 472.490)
This act establishes the Missouri Fiduciary Access to Digital Assets Act, which allows fiduciaries to access electronic records or "digital assets" of an account holder or "user".
A user may allow or prohibit the disclosure of his or her digital assets to a fiduciary in a will, trust, or other record. The user may also use an online tool to direct the custodian of the digital assets to disclose some or all of the digital assets. In certain situations, the direction of the user to the custodian using the online tool can override a conflicting direction contained in the user’s will, trust, or other record.
The user's direction regarding the disclosure of the digital assets under an online tool or other record overrides a contrary provision in a terms-of-service agreement that does not require the user to take affirmative action regarding the agreement. A fiduciary's access to digital assets may be modified or eliminated by a user, federal law, or a terms-of-service agreement if the user has not provided direction through the use of an online tool or will, trust, or other record.
A custodian has the discretion to grant to a fiduciary full access to the user's account, partial access, or provide a copy of the digital assets requested. The custodian may charge a fee for disclosure, but may not disclose a digital asset that the user has deleted.
A custodian shall disclose to the fiduciary the content of an electronic communication sent or received by the user, a catalogue of electronic communications, and digital assets of the user if the fiduciary provides certain documentation as specified in the act. If the fiduciary is an agent acting under a power of attorney, then the power of attorney must expressly grant the agent authority over the content of electronic communications sent or received by the user for the custodian to disclose the digital assets.
A custodian may disclose to a conservator the user's catalogue of electronic communications and any digital assets if the conservator is given authority by the court and provides the court order to the custodian. Additionally, a conservator may request the suspension or termination of a user's account for good cause.
A fiduciary may terminate the user's account in writing and such request must be accompanied with certain documents as provided in the act.
A custodian has sixty days to comply with a fiduciary's request for disclosure or account termination. If the custodian does not comply with the request, then the fiduciary may apply to the court to order compliance.
These provisions are identical to SCS/SB 129 (2017), HCS/HB 379 (2017), provisions in SCS/HCB 1 (2017), and provisions in HCS/HCB 8 (2017).
GUARDIANSHIP OF A MINOR (475.084)
When a guardian is appointed for a minor because his or her parents are unwilling, unable, or adjudged unfit, then a parent may be granted visitation if it is in the best interests of the child.
This provision is identical to HB 287 (2017) and to a provision in HCB 8 (2017) and SCS/HCB 1 (2017).
SUPPORTING AND STRENGTHENING FAMILIES ACT (210.1109, 475.600, 475.602, 475.604, 475.024)
This act may be known as the "Supporting and Strengthening Families Act". It provides that during a child protective investigation if the child is at risk for possible removal, the Children's Division shall provide information to the parent about community service programs that provide support services for families in crisis.
Additionally, a parent or legal custodian of a child may delegate to an attorney-in-fact, without compensation, any powers regarding the care and custody of a child for a period not to exceed one year, unless an exception applies as specified in the act. Such delegation does not change parental or legal rights established by a court order or deprive the parent or legal custodian of any rights regarding child custody, visitation, or support.
A parent who intentionally uses a power of attorney to permanently avoid legal responsibility for the care of the child is guilty of violating current law on transferring child custody without a court order. A child subject to the power of attorney shall not be considered placed in foster care and the parties shall not be subject to any licensing regulations for foster care or community care for children.
Community service programs for families in crisis must conduct a background check of an attorney-in-fact and any adult members of his or her household prior to the placement of the child.
An attorney-in-fact must make arrangements to ensure that the child attends classes at an appropriate school based upon the residency requirements of the school, and the child's school shall be notified of the existence of the power of attorney and be provided a copy of the power of attorney. The delegation of care under the act shall not modify a child's eligibility for the benefits, such as free or reduced lunch, that the child is receiving at the time of the execution of the power of attorney.
Finally, this act specifies the information to be included on a form delegating any powers regarding the care and custody of a child under this act.
These provisions are identical to provisions in HCS/SB 195 (2017) and SCS/HCB 1 (2017) and similar to SB 801 (2016) and HB 1433 (2016) and substantially similar to HB 684 (2015).
SIXTEENTH JUDICIAL CIRCUIT (478.463)
This act provides that Division Twelve of the Sixteenth Judicial Circuit shall sit at the City of Independence, rather than Kansas City.
This provision is identical to SCS/HCS/HB 50 (2017) and to a provision in SCS/HCB 1 (2017) .
MUNICIPAL JUDGES (479.020)
Under current law, a judge cannot serve as a municipal judge in more than five municipalities. This act specifies that a court serving more than one municipality shall be treated as a single municipality for the purposes of this requirement.
This provision is identical to a provision in SCS/HCB 1 (2017), HCS/HB 597 (2017), HCS/SS/SB 124 (2017), and HCS/HB 380 (2017).
CRIMINAL CODE REVISION (479.170)
The act changes a sectional reference in a section prohibiting a municipal judge from hearing cases involving the operation of a motor vehicle while intoxicated.
This provision is identical to a provision in SB 512 (2017), the truly agreed to and finally passed version of SB 34 (2017), HCB 9 (2017), SCS/HCB 1 (2017), and HCS/HB 1133 (2017).
TRAFFIC VIOLATIONS (479.353, 479.354)
When an individual has been held in custody on a notice to show cause warrant for a minor traffic violation, this act allows the court to waive or reduce the original fine or sentence when reasonable.
A defendant must be given the date and time to appear in court at the same time he or she is given a notice to appear in court, citation, or summons for a minor traffic violation, and failure to provide such information shall render the notice to appear void.
These provisions are identical to provisions in HCS/SS/SB 124 (2017), SCS/HCB 1 (2017), and HCS/HB 380 (2017).
CONTROLLED SUBSTANCE SURCHARGE (488.029, 488.5050)
Currently a court surcharge of one hundred fifty dollars is assessed in criminal cases involving violations of the Missouri Narcotic Drug Act. This act states that such surcharge shall also be assessed in cases involving controlled substance offenses.
This provision is identical to a provision in SB 512 (2017), HCS/HB 1133 (2017), SCS/HCB 1 (2017), and HCS/SS/SB 34 (2017), and HCB 9 (2017).
Likewise, the surcharge of sixty dollars shall be assessed when a person is found guilty of certain controlled substance offenses that are felonies.
This provision is identical to a provision in HCS/HB 1133 (2017), SCS/HCB 1 (2018), and HCS/SS/SB 34 (2017).
JUSTICE CENTER FUND (488.2206)
This act provides that any single noncharter county judicial circuit, rather than just the Thirty-First Judicial Circuit, shall collect a surcharge of up to ten dollars in all cases to be deposited in an account known as the "Justice Center Fund." In addition to costs associated with the construction, maintenance, and operation of a judicial facility, the act states that the funds from the surcharge may be used for the planning, including architectural and engineering plans, of a judicial facility or justice center.
The county or municipality shall maintain records identifying all funds received and expenditures made from the fund.
This provision is identical to SB 83 (2017), provisions in HCS/SCS/SB 309 (2017), SCS/HCB 1 (2017), and SB 1012 (2016).
COURT REPORTER FEES (488.2250)
This act repeals provisions of law which specify that court reporters shall receive three dollars and fifty cents a page in proceedings in any circuit court. Also, the act repeals the provision specifying that the court reporter is to be reimbursed three dollars and fifty cents per legal page for the preparation of transcripts.
This provision is identical to SCS/SB 169 (2017), provisions in HCS/HB 597 (2017), SCS/HCB 1 (2017), and provisions in HCS/HB 380 (2017).
BANKRUPTCY EXEMPTIONS (513.430, 513.440)
This act allows a person to exempt an engagement ring not to exceed $1,500 in value from attachment in bankruptcy proceedings. A person may also exempt any kind of property not to exceed $1,200, rather than not to exceed $600 as provided under current law.
Current law provides that a person can exempt from attachment the right to receive money from a retirement or profit-sharing plan. This act specifies that a person may also exempt money payable to him or her under a 401(k) retirement plan or any type of individual retirement arrangement. The exemption amount for an individual retirement arrangement is unlimited if allowed by federal law or limited to the maximum exemption allowed under federal law.
The head of a family may exempt any other property, real or personal, not to exceed $1,650 plus $450 for each dependent children, rather than not to exceed $1,250 plus $350 for each dependant child as provided under current law.
These provisions are identical to provisions found in SCS/HCB 1 (2017) and HCS/HB 422 (2017).
GUARDIAN AD LITEM FEES (514.040)
Current law provides that when a person is represented in a civil action by a legal aid society or other nonprofit organization who provides legal services to indigent persons all costs related to the prosecution may be waived without a motion or court approval. This act provides that this automatic waiver shall not include guardian ad litem fees. A party requesting waiver of guardian ad litem fees, who is represented by a legal aid society or other nonprofit, must file an updated certification form with the court prior to trial. Any party may present to the court additional evidence on the financial condition of the parties.
This provision is identical to a provision in HCS/HCB 8 (2017) and SCS/HCB 1 (2017) and similar to HB 765 (2017).
MISSOURI COMMERCIAL RECEIVERSHIP ACT (515.575, 515.635)
Under current law, an order appointing a general receiver shall stay any act to collect, assess, or recover a claim against the debtor. This act provides that the stay shall automatically expire sixty days after the appointment. A stay on an act to obtain possession of estate property from the receiver shall not automatically expire after sixty days.
If there are "insufficient" rather than "sufficient" funds in the estate, which is in receivership, to pay all interests, then interests shall be paid proportionately to each member of the class.
This provision is identical to a provision in SCS/HCB 8 (2017) and SCS/HCB 1 (2017).
DEPARTMENT OF MENTAL HEALTH STANDING (552.020)
This act grants the legal counsel for the Department standing to participate in hearings regarding involuntary medications for the accused, after a person accused of committing a crime has been committed to the Department of Mental Health due to lack of mental fitness to stand trial.
This provision is identical to SB 221 (2017), HB 945 (2017), provisions in SCS/HCB 1 (2017), and SB 1055 (2016).
HATE OFFENSES (557.035)
Under current law, if an assault in the third degree or harassment in the first degree is believed to be knowingly motivated because of race, color, religion, national origin, sex, sexual orientation, or disability of the victim, such violation shall be a Class E felony. This act makes such a violation a Class D felony.
The act further stipulates that if assault in the fourth degree is believed to be knowingly motivated because of race, color, religion, national origin, sex, sexual orientation, or disability of the victim, such violation shall be a Class E felony.
These provisions are identical to provisions in the truly agreed to SB 34, HCS/HB 1133 (2017), SCS/HCB 1 (2017), and HCB 9 (2017) and similar to provisions in SB 512 (2017) and HCS/HB 57 (2017).
DOMESTIC ASSAULT, HARASSMENT (565.076, 565.091, 566.010)
Under current law, the offense of domestic assault in the fourth degree is a Class A misdemeanor, unless the person has previously been found guilty of assault of a domestic victim two or more times, in which case such offense is a Class E felony. This act provides that domestic assault in the fourth degree is a Class E felony if the person has been found guilty two or more times of any assault offense under state law or of any offense against a domestic victim under any local ordinance, or any state, federal, or military law which would constitute domestic assault in the fourth degree if committed in this state.
Harassment in the second degree is a Class A misdemeanor, unless the person has previously been found guilty of harassment in the second degree or of any offense under any local ordinance, state law, federal law, or military law, which would be chargeable as harassment in the second degree, then harassment in the second degree is a Class E felony. The provisions criminalizing harassment in the second degree shall not apply to the activities of law enforcement officers conducting investigations.
These provisions are identical to provisions in SB 512 (2017), SCS/HCB 1 (2017), the truly agreed to and finally passed version of SB 34 (2017), HCB 9 (2017), and HCS/HB 1133 (2017).
FILING FALSE DOCUMENTS (400.9-501, 570.095)
This act creates the offense of filing false documents. For the first offense, filing a false document is a Class D felony, but can be a Class C felony in certain specified instances. Any person who is found guilty of committing such offense shall be ordered to make full restitution to any person or entity that has sustained any actual losses as a result of the commission of such offense.
The act specifies that a system shall be created, by January 1, 2018, in which suspicious filings are logged, and outlines the process for petitioning a court when a person has probable cause to believe a filing is fraudulent.
If a filing or record is deemed invalid, the prevailing party shall be awarded all reasonable costs and fees incurred by that party in the action.
These provisions are identical to provisions in SCS/HCB 1 (2017), and substantially similar to HCS/HB 303 (2017) and to provisions in HCS/SB 332 (2017) and similar to HB 1858 (2016).
ACCEDING TO CORRUPTION (575.280)
The offense of acceding to corruption is a Class D felony if a witness accepts a benefit on the understanding that he or she will disobey a legal process in a felony prosecution proceeding.
This provision is identical to a provision contained in SB 512 (2017), the truly agreed to and finally passed version of SB 34 (2017), HCB 9 (2017), SCS/HCB 1 (2017), and HCS/HB 1133 (2017).
INTOXICATED RELATED OFFENSES (577.001, 577.010)
The definition of the terms "habitual offender" and "intoxication-related traffic offense" are modified as used in provisions relating to public safety criminal offenses. Driving while intoxicated is a Class B felony if the person acts with criminal negligence to 1) cause the death of another who is not in the vehicle, 2) cause the death of two or more persons, or 3) cause the death of any person while having a blood alcohol content of at least eighteen-hundredths of one percent.
These provisions are identical to provisions contained in the truly agreed to and finally passed version of SB 34 (2017), HCB 9 (2017), SCS/HCB 1 (2017), and HCS/HB 1133 (2017), and substantially similar to provisions in SB 512 (2017).
VICTIM IMPACT PROGRAM (577.011)
This act creates "Toby's Law", and provides that a person who has been found guilty of driving while intoxicated must complete a victim impact program approved by the court. The person is responsible for any charges imposed by the program.
This provision is identical to SB 142 (2017), provisions in SCS/HCB 1 (2017), and SB 890 (2016), and substantially similar to HB 107 (2017) and HB 1436 (2016).
EVIDENTIAL BREATH ANALYZERS (577.037)
This act abrogates the holdings of Stiers v. Dir. of Revenue, No. SC4840 (Mo. Jan. 12, 2016) and Stiers v. Dir. of Revenue, ED 101407, 2015 WL 343310 (Mo. App. E.D. Jan. 27, 2015). This act requires admission of relevant chemical analysis of a person's breath in proceedings for any criminal offense or violations of county or municipal ordinances or license suspension or revocation proceedings arising out of acts occurring between December 30, 2012, and April 4, 2014, relating to the operation of a vehicle, vessel, or aircraft while in an intoxicated condition or with an excessive blood alcohol content so long as the evidence meets certain conditions outlined in the act. This act deems the provision to be a procedural rule and applicable to all proceedings in progress whether commenced before or after the enactment of the act.
This provision is identical to HB 35 (2017), to provisions in SCS/HCB 1 (2017), and substantially similar to SB 158 (2017), SB 1014 (2016), and HB 2627 (2016).
OFFENSE OF LEAVING THE SCENE OF AN ACCIDENT (577.060)
This act specifies that the offense of leaving the scene of an accident is a Class D felony if a death occurs as a result of the accident.
This provision is identical to HB 178 (2017), provisions in HCB 9 (2017), provisions in SCS/HCB 1 (2017), and to provisions in the truly agreed to and finally passed version of SB 34 (2017).
ADDRESS CONFIDENTIALITY PROGRAM (589.663)
Under this act, no person or entity shall be compelled to disclose the actual address of an Address Confidentiality Program participant during the discovery phase of a court proceeding, unless (1) the court find that there is a reasonable belief that the address is needed to obtain information or evidence without which the investigation, prosecution, or litigation cannot proceed and (2) there is no other practicable way of obtaining the information or evidence. The court shall provide to the participant notice and an opportunity to present evidence regarding the disclosure order. The court shall also give the Secretary of State notice when ordering the disclosure of a program applicant's actual address. The Secretary of State shall have the opportunity to intervene in any proceeding where a court is considering ordering the disclosure of a participant's address.
This provision is identical to a provision in SCS/HCS/HB 260 (2017) and to a provision in SCS/HCB 1 (2017) and substantially similar to a provision in the truly agreed to and finally passed version of SB 34 (2017).
CRIME VICTIMS' COMPENSATION FUND (595.045)
The act specifies that when a defendant is found guilty of a Class E felony the court shall enter a judgment for forty-six dollars payable to the Crime Victims' Compensation Fund.
This provision is identical to a provision contained in HB 743 (2017), HCS/HB 1133 (2017), SCS/HCB 1 (2017), HCB 9 (2017), and SB 512 (2017).
JESSI BAKER