ENROLLED
H. B. 3153
(By Delegates Boggs, Craig and R. M. Thompson)
[Passed April 9, 2005; in effect ninety days from passage]
AN ACT to amend §61-3-28 of the Code of West Virginia, 1931, as
amended; and to amend §61-3-41 of said code, all relating to
creation of criminal offenses for damaging, stealing or injury
to railroad property; defining terms; creating an offense for
reckless disregard for railroad property; creating an offense
for intentionally damaging railroad property; and providing
penalties.
Be it enacted by the Legislature of West Virginia:
That §61-3-28 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §61-3-41 of said code be amended
and reenacted, all to read as follows:
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-28. Offenses against railroad property and persons on
railroad property; definitions.
(a) As used in this section:
(1) "Bodily injury" means substantial physical pain, illness
or any impairment of physical injury.
(2) "Railroad" means any form of nonhighway ground
transportation that runs on rails or electromagnetic guideways,
including:
(i) Commuter or other short-haul railroad passenger service in
a metropolitan or suburban area; and
(ii) High-speed ground transportation systems that connect
metropolitan areas but does not include rapid transit operations in
an urban area that are not connected to the general railroad system
of transportation;
(3) "Railroad carrier" means a person providing railroad
transportation; railroad carrier including a right-of-way, track,
bridge, yard, shop, station, tunnel, viaduct, trestle, depot,
warehouse, terminal, railroad signal system, train control system,
centralized dispatching system, or any other structure,
appurtenance, or equipment owned, leased, or used in the operation
of any railroad carrier including a train, locomotive, engine,
railroad car, work equipment, rolling stock, or safety device.
"Railroad property" does not include administrative buildings,
administrative offices, or administrative office equipment;
(4) "Right-of-way" means the track or roadbed owned, leased,
or operated by a railroad carrier which is located on either side
of its tracks and which is readily recognizable to a reasonable person as being railroad property or is reasonably identified as
such by fencing or appropriate signs;
(5) "Yard" means a system of parallel tracks, crossovers, and
switches where railroad cars are switched and made up into trains,
and where railroad cars, locomotives and other rolling stock are
kept when not in use or when awaiting repairs.
(b) Whoever willfully damages or attempts to damage railroad
property or willfully endangers or attempts to endanger the safety
of another, by:
(1) Taking, removing, altering, or otherwise vandalizing a
railroad sign, placard or marker;
(2) Throwing or dropping an object capable of causing
significant damage to railroad property at or on a locomotive,
railroad car or train;
(3) Shooting a firearm or other dangerous weapon at a
locomotive, railroad car or train;
(4) Removing appurtenances from, damaging, or otherwise
impairing the operation of any railroad signal system, including a
train control system, centralized dispatching system, or
highway-railroad grade crossing warning signal, on a railroad
owned, leased, or operated by any railroad carrier, and without
consent of the railroad carrier involved;
(5) Interfering or tampering with, or obstructing in any way,
any switch, frog, rail, roadbed, sleeper, viaduct, bridge, trestle, culvert, embankment, structure, or appliance pertaining to or
connected with any railroad carrier without consent of the railroad
carrier involved; or
(6) Taking, stealing, removing, changing, adding to, altering,
or in any manner interfering with any part of the operating
mechanism of any locomotive, engine, tender, coach, car, caboose,
or motor car used or capable of being used by any railroad carrier
in this state without consent of the railroad carrier is guilty of
a felony.
If railroad property damage does not exceed one thousand
dollars and no bodily injury occurs to another as a result of any
of the aforesaid acts, upon conviction thereof, the person shall be
fined not more than five thousand dollars, confined in a regional
jail for not more than one year, or both. If bodily injury occurs
to another not acting with or in connection with the perpetrator as
a result of any of the aforesaid acts or if railroad property
damage exceeds one thousand dollars, upon conviction thereof, the
person shall be fined not more than ten thousand dollars, committed
to the custody of the Commission of Corrections for not less than
one nor more than ten years, or both.
(d) The provisions of this section do not apply to any person
employed by a railroad who is performing the duties assigned by the
railroad or who is otherwise performing within the scope of his or
her employment.
§61-3-41. Employees conservators of the peace; special railroad
policemen; penalties.
The conductor of every passenger car and flag person and
brake person employed on such car, as well as the conductor of
every train of railroad or traction cars, shall have all the powers
of a conservator of the peace while in charge of such car or train.
Any railroad company owning, or leasing and operating, or
using any railroad or traction line or system lying wholly or
partially within this state, whether such railroad be operated by
steam or electric power, may apply to the governor to appoint such
citizen or citizens of this state as such railroad company may
designate, to act as special police officers for such railroad or
traction company, with the consent of such citizen or citizens; and
the governor may, upon such application, appoint and commission
such person or persons, or so many of them as he may deem proper,
as such special police officers. Every police officer so appointed
shall appear before some person authorized to administer oaths and
take and subscribe the oath prescribed in the fifth section of the
fourth article of the constitution, and shall file such oath with
the clerk of the county commission, or other tribunal in lieu
thereof, of the county in which he shall reside. He or she shall
also file certified copies of such oath in the office of the
secretary of state, and in the office of the clerk of the county
commission, or other tribunal established in lieu thereof, of each county through which such railroad or any portion thereof may
extend. Every police officer appointed under the provisions of
this section shall be a conservator of the peace within each county
in which any part of such railroad may be situated, and in which
such oath or a certified copy thereof shall have been filed with
the clerk of the county commission or other tribunal established in
lieu thereof; and, in addition thereto, he shall possess and may
exercise all the powers and authority, and shall be entitled to all
the rights, privileges and immunities within such counties, as are
now or hereafter may be vested in or conferred upon a deputy
sheriff of such county. Any appointment made by the governor under
the provisions of this section may be revoked by him or her for
good cause shown, and such police officers may be removed from
office for official misconduct, incompetence, habitual drunkenness,
neglect of duty or gross immorality, in the same manner in which
regularly elected or appointed county officers may be removed from
office. Whenever any such railroad company shall desire to
dispense with the services of any police officer, it may file a
notice to that effect, under its corporate seal, attested by its
secretary, in each of the several offices in which such oath or
certified copy thereof shall have been filed; and, thereupon, the
powers of the police officer shall cease and determine. Police
officers may wear such uniform and badge of authority, or either,
as the railroad company, upon whose application they were appointed, may designate, and such railroad company shall pay them
for all services rendered pursuant to his or her appointment.