SECOND ENROLLMENT
COMMITTEE SUBSTITUTE
FOR
H. B. 3120
(By Delegates Morgan, Marshall, Talbott, Martin, Klempa and
Paxton
)
[Amended and again passed May 27, 2009, as a result of the
objections of the Governor; in effect ninety days from passage.]
AN ACT
to repeal §7-4-6a of the Code of West Virginia, 1931,
as amended; and to
amend and reenact
§7-4-6
of said code, relating
to the West Virginia Prosecuting Attorneys Institute; increasing
the membership of the executive council; permitting the appointment
of special prosecutors in matters of juvenile delinquency and child
abuse and neglect; and repealing outdated section that continued
the Prosecuting Attorneys Institute.
Be it enacted by the Legislature of West Virginia:
That §7-4-6a of the Code of West Virginia, 1931, as amended,
be repealed, and that §7-4-6 of said code be amended and reenacted
to read as follows:
ARTICLE 4. PROSECUTING ATTORNEY, REWARDS AND LEGAL ADVICE.
§7-4-6. West Virginia Prosecuting Attorneys Institute.
(a) There is continued the West Virginia Prosecuting Attorneys
Institute, a public body whose membership shall consist of the
fifty-five elected county prosecuting attorneys in the state. The
Institute shall meet at least once each calendar year and the
presence of twenty-eight of the fifty-five prosecutors at any
meeting constitutes a quorum for the conduct of the Institute's
business.
(b) There is continued the Executive Council of the West
Virginia Prosecuting Attorneys Institute which shall consist of
seven prosecuting attorneys elected by the membership of the West
Virginia Prosecuting Attorneys Institute at its annual meeting and
two persons appointed annually by the county commissioner's
association of West Virginia. The executive council shall elect
one member of the council to serve as chairman of the institute for
a term of one year without compensation. The executive council
shall serve as the regular executive body of the institute.
(c) There is continued the position of Executive Director of
the West Virginia Prosecuting Attorneys Institute to be employed by
the executive council of the institute. The Executive Director of
the West Virginia Prosecuting Attorneys Institute shall serve at
the will and pleasure of the executive council of the institute.
The executive director shall be licensed to practice law in the
State of West Virginia and shall devote full time to his or her
official duties and may not engage in the private practice of law.
(d) The duties and responsibilities of the institute, as
implemented by and through its executive council and its executive
director, shall include the following:
(1) The provision for special prosecuting attorneys to pursue
a criminal matter, a juvenile delinquency matter or a matter
involving child abuse neglect pursuant to chapter forty-nine of
this code,
or in any matter wherein a special prosecutor previously
appointed has failed to take any action thereon within such time as
the Executive Director deems unreasonable, not to exceed three
terms of court from the date on which the special prosecutor was
appointed: Provided, That such replacement or original appointment
may be any attorney with a license in good standing in this state
in any county upon the request of a circuit court judge of that
county and upon the approval of the executive council;
(2) The establishment and implementation of general and
specialized training programs for prosecuting attorneys, their
staffs and, where determined practical by the executive council and
executive director, all statutorily authorized law-enforcement or
investigative agencies of the state or its political subdivisions;
(3) The provision of materials for prosecuting attorneys and
their staffs, including legal research, technical assistance and
technical and professional publications;
(4) The compilation and dissemination of information on behalf
of prosecuting attorneys and their staffs on current developments and changes in the law and the administration of criminal justice;
(5) The establishment and implementation of uniform reporting
procedures for prosecuting attorneys and their professional staffs
in order to maintain and to provide accurate and timely data and
information relative to criminal prosecutorial matters;
(6) The acceptance and expenditure of grants, moneys for
reimbursement of expenses, gifts and acceptance of services from
any public or private source;
(7) The entering into of agreements and contracts with public
or private agencies, groups, organizations or educational
institutions;
(8) The identification of experts and other resources for use
by prosecutors in criminal matters;
(9) The recommendation to the Legislature or the Supreme Court
of Appeals of the State of West Virginia on measures required, or
procedural rules to be promulgated, to make uniform the processing
of juvenile cases in the fifty-five counties of the state; and
(10) The development of a written handbook for prosecutors and
their assistants to use which delineates relevant information
concerning the elements of various crimes in West Virginia and
other information the institute considers appropriate.
(e) Each prosecuting attorney is subject to appointment by the
institute to serve as a special prosecuting attorney in any county
where the prosecutor for that county or his or her office has been disqualified from participating in a particular criminal case, a
juvenile delinquency matter or a matter involving child abuse
neglect pursuant to chapter forty-nine of this code,
or in any
matter wherein a special prosecutor previously appointed has failed
to take any action thereon within such time as the Executive
Director deems unreasonable, not to exceed three terms of court
from the date on which the special prosecutor was appointed:
Provided, That such replacement or original appointment may be any
attorney with a license in good standing in this state
. The
circuit judge of any county of this state, who disqualifies the
prosecutor or his or her office from participating in a particular
criminal case, a juvenile delinquency matter or a matter involving
child abuse or neglect pursuant to chapter forty-nine of this code
in that county, shall seek the appointment by the institute of a
special prosecuting attorney to substitute for the disqualified
prosecutor. The executive director of the institute shall, upon
written request to the institute by any circuit judge as a result
of disqualification of the prosecutor or for other good cause
shown, and upon approval of the executive council, appoint a
prosecuting attorney to serve as a special prosecuting attorney.
The special prosecuting attorney appointed shall serve without any
further compensation other than that paid to him or her by his or
her county, except that he or she is entitled to be reimbursed for
his or her legitimate expenses associated with travel, mileage and room and board from the county to which he or she is appointed as
a prosecutor. The county commission in which county he or she is
special prosecutor is responsible for all expenses associated with
the prosecution of the criminal action. No person who is serving
as a prosecuting attorney or an assistant prosecuting attorney of
any county is required to take an additional oath when appointed to
serve as a special prosecuting attorney.
(f) The executive director of the institute shall maintain an
appointment list that shall include the names of all fifty-five
prosecuting attorneys and that shall also include the names of any
assistant prosecuting attorney who wishes to serve as a special
prosecuting attorney upon the same terms and conditions as set
forth in this section. The executive director of the institute,
with the approval of the executive council, shall appoint special
prosecuting attorneys from the appointment list for any particular
matter giving due consideration to the proximity of the proposed
special prosecuting attorney's home county to the county requesting
a special prosecutor and giving due consideration to the expertise
of the special prosecuting attorney.
(g) Each county commission shall pay, on a monthly basis, a
special prosecution premium to the Treasurer of the state for the
funding of the West Virginia Prosecuting Attorneys Institute. The
monthly premiums shall be paid according to the following schedule:
MONTHLY PREMIUMS
Assessed Valuation of Property
of All Classes in the County
Category Minimum
Maximum Premium
A $1,500,000,000 Unlimited $400
B $1,000,000,000 $1,499,999,000 $375
C $ 800,000,000 $ 999,999,000 $350
D $ 700,000,000 $ 799,999,000 $325
E $ 600,000,000 $ 699,999,000 $300
F $ 500,000,000 $ 599,999,000 $250
G $ 400,000,000 $ 499,999,000 $200
H $ 300,000,000 $ 399,999,000 $150
I $ 200,000,000 $ 299,999,000 $100
J
-0- $ 199,999,000 $ 50
(h) Upon receipt of a premium, grant, reimbursement or other
funding source, excluding federal funds as provided in article two,
chapter four of this code, the Treasurer shall deposit the funds
into a special revenue fund to be known as the "West Virginia
Prosecuting Attorneys Institute Fund". All costs of operating the
West Virginia Prosecuting Attorneys Institute shall be paid from
the West Virginia Prosecuting Attorneys Institute Fund upon proper
authorization by the executive council or by the executive director
of the institute and subject to annual appropriation by the
Legislature of the amounts contained within the fund.
(i) The institute shall annually, by the first day of the regular Legislative session, provide the Joint Committee on
Government and Finance with a report setting forth the activities
of the institute and suggestions for legislative action.
(j) Neither the institute nor its employees acting in their
employment capacity shall engage in activities before governmental
bodies which advocate positions on issues other than those issues
consistent with the duties of the institute set forth in subsection
(d) of this section.
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