ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 365
(By Senators Craigo and Love)
____________
[Originating in the Committee on Finance;
reported February 24, 1999.]
____________
A BILL to amend and reenact sections three, four and twenty,
article two-a, chapter fourteen of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
all relating to crime victims compensation; defining terms;
providing that a lost scholarship is included as an economic
loss; modifying budgetary and payment process; eliminating
economic loss claim payment fund and transferring funds to
crime victims fund; submission of anticipated budget by
legislative auditor; requiring governor to include amounts
submitted in proposed budget bill and revenue estimates; and
providing auditor may only review claims for sufficiency of
funds.
Be it enacted by the Legislature of West Virginia:
That sections three, four and twenty, article two-a, chapter fourteen of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted, all to read as
follows:
ARTICLE 2A. COMPENSATION AWARDS TO VICTIMS OF CRIMES.
§14-2A-3. Definitions.
As used in this article, the term:
(a) "Claimant" means any of the following persons, whether
residents or nonresidents of this state, who claim an award of
compensation under this article:
(1) A victim: Provided,
That the term victim does not
include a nonresident of this state where the criminally
injurious act did not occur in this state;
(2) A dependent, spouse or minor child of a deceased victim;
or in the event that the deceased victim is a minor, the parents,
legal guardians and siblings of the victim;
(3) A third person other than a collateral source who
legally assumes or voluntarily pays the obligations of a victim,
or of a dependent of a victim, which obligations are incurred as a result of the criminally injurious conduct that is the subject
of the claim; and
(4) A person who is authorized to act on behalf of a victim,
dependent or a third person who is not a collateral source; and,
in the event that the victim, dependent or third person who is
not a collateral source is a minor or other legally incompetent
person, the duly qualified fiduciary of the minor.
(b) "Collateral source" means a source of benefits or
advantages for economic loss otherwise compensable that the
victim or claimant has received, or that is readily available to
him, from any of the following sources:
(1) The offender, including any restitution received from
the offender pursuant to an order by a court of law sentencing
the offender or placing him on probation following a conviction
in a criminal case arising from the criminally injurious act for
which a claim for compensation is made;
(2) The government of the United States or any of its
agencies, a state or any of its political subdivisions, or an
instrumentality of two or more states;
(3) Social security, medicare and medicaid;
(4) State-required, temporary, nonoccupational disability insurance; other disability insurance;
(5) Workers' compensation;
(6) Wage continuation programs of any employer;
(7) Proceeds of a contract of insurance payable to the
victim or claimant for loss that was sustained because of the
criminally injurious conduct;
(8) A contract providing prepaid hospital and other health-
care services or benefits for disability; and
(9) That portion of the proceeds of all contracts of
insurance payable to the claimant on account of the death of the
victim which exceeds twenty-five thousand dollars.
(c) "Criminally injurious conduct" means conduct that occurs
or is attempted in this state or in any state not having a victim
compensation program which by its nature poses a substantial
threat of personal injury or death, and is punishable by fine or
imprisonment or death, or would be so punishable but for the fact
that the person engaging in the conduct lacked capacity to commit
the crime under the laws of this state. Criminally injurious
conduct also includes an act of terrorism, as defined in 18
U.S.C. §2331, committed outside of the United States against a
resident of this state. Criminally injurious conduct does not include conduct arising out of the ownership, maintenance or use
of a motor vehicle, except when the person engaging in the
conduct intended to cause personal injury or death, or except
when the person engaging in the conduct committed negligent
homicide, driving under the influence of alcohol, controlled
substances or drugs, or reckless driving.
(d) "Dependent" means an individual who received over half
of his or her support from the victim. For the purpose of
determining whether an individual received over half of his or
her support from the victim, there shall be taken into account
the amount of support received from the victim as compared to the
entire amount of support which the individual received from all
sources, including support which the individual himself or
herself supplied. The term "support" includes, but is not
limited to, food, shelter, clothing, medical and dental care and
education. The term "dependent" includes a child of the victim
born after his or her death.
(e) "Economic loss" means economic detriment consisting only
of allowable expense, work loss and replacement services loss.
If criminally injurious conduct causes death, economic loss
includes a dependent's economic loss and a dependent's replacement services loss. Noneconomic detriment is not economic
loss; however, economic loss may be caused by pain and suffering
or physical impairment. For purposes of this article, the term
"economic loss" includes a lost scholarship as defined in this
section.
(f) "Allowable expense" means reasonable charges incurred or
to be incurred for reasonably needed products, services and
accommodations, including those for medical care, prosthetic
devices, eye glasses, dentures, rehabilitation and other remedial
treatment and care.
Allowable expense includes a total charge not in excess of
four thousand dollars for expenses in any way related to funeral,
cremation and burial. It does not include that portion of a
charge for a room in a hospital, clinic, convalescent home,
nursing home or any other institution engaged in providing
nursing care and related services in excess of a reasonable and
customary charge for semiprivate accommodations, unless
accommodations other than semiprivate accommodations are
medically required.
(g) "Work loss" means loss of income from work that the
injured person would have performed if he or she had not been injured and expenses reasonably incurred or to be incurred by him
or her to obtain services in lieu of those he or she would have
performed for income, reduced by any income from substitute work
actually performed or to be performed by him or her, or by income
he or she would have earned in available appropriate substitute
work that he or she was capable of performing but unreasonably
failed to undertake.
(h) "Replacement services loss" means expenses reasonably
incurred or to be incurred in obtaining ordinary and necessary
services in lieu of those the injured person would have
performed, not for income but for the benefit of himself or
herself or his or her family, if he or she had not been injured.
(i) "Dependent's economic loss" means loss after a victim's
death of contributions or things of economic value to his or her
dependents, not including services they would have received from
the victim if he or she had not suffered the fatal injury, less
expenses of the dependents avoided by reason of the victim's
death.
(j) "Dependent's replacement service loss" means loss
reasonably incurred or to be incurred by dependents after a
victim's death in obtaining ordinary and necessary services in lieu of those the victim would have performed for their benefit
if he or she had not suffered the fatal injury, less expenses of
the dependents avoided by reason of the victim's death and not
subtracted in calculating dependent's economic loss.
(k) "Victim" means a person who suffers personal injury or
death as a result of any one of the following: (1) Criminally
injurious conduct; (2) the good faith effort of the person to
prevent criminally injurious conduct; or (3) the good faith
effort of the person to apprehend a person that the injured
person has observed engaging in criminally injurious conduct, or
who the injured person has reasonable cause to believe has
engaged in criminally injurious conduct immediately prior to the
attempted apprehension.
(l) "Contributory misconduct" means any conduct of the
claimant, or of the victim through whom the claimant claims an
award, that is unlawful or intentionally tortious and that,
without regard to the conduct's proximity in time or space to the
criminally injurious conduct, has causal relationship to the
criminally injurious conduct that is the basis of the claim and
shall also include the voluntary intoxication of the claimant,
either by the consumption of alcohol or the use of any controlled substance when the intoxication has a causal connection or
relationship to the injury sustained. The voluntary intoxication
of a victim is not a defense against the estate of a deceased
victim.
(m) "Lost scholarship" means a scholarship, academic award,
stipend or other monetary scholastic assistance which had been
awarded or conferred upon a victim in conjunction with a
postsecondary school educational program and, which the victim is
unable to receive or use, in whole or in part, due to injuries
received from criminally injurious conduct.
§14-2A-4. Creation of crime victims compensation fund.
(a) Every person within the state who is convicted of or
pleads guilty to a misdemeanor offense, other than a traffic
offense that is not a moving violation, in any magistrate court
or circuit court, shall pay the sum of ten dollars as costs in
the case, in addition to any other court costs that the court is
required by law to impose upon the convicted person. Every
person within the state who is convicted of or pleads guilty to
a misdemeanor offense, other than a traffic offense that is not
a moving violation, in any municipal court, shall pay the sum of
eight dollars as costs in the case, in addition to any other court costs that the court is required by law to impose upon the
convicted person. In addition to any other costs previously
specified, every person within the state who is convicted of or
pleads guilty to a violation of section two, article five,
chapter seventeen-c of this code, shall pay a fee in the amount
of twenty percent of any fine imposed under said that section.
This shall be is in addition to any other court costs required by
this section or which may be required by law.
(b) The clerk of the circuit court, magistrate court or
municipal court wherein where the additional costs are imposed
under the provisions of subsection (a) of this section shall, on
or before the last day of each month, transmit all costs received
under this article to the state treasurer for deposit in the
state treasury to the credit of a special revenue fund to be
known as the "Crime Victims Compensation Fund". which is hereby
created. All moneys heretofore collected and received under the
prior enactment or reenactments of this article and deposited or
to be deposited in the "Crime Victims Reparation Fund" are hereby
transferred to the crime victims compensation fund, and the
treasurer shall deposit the moneys in the state treasury All
moneys collected and received under this article and paid into the state treasury and credited to the crime victims compensation
fund in the manner prescribed in section two, article two,
chapter twelve of this code, shall be kept and maintained for the
specific purposes of this article, and shall may not be treated
by the auditor and treasurer as part of the general revenue of
the state.
(c) Expenditure of moneys in the crime victims compensation
fund shall be available for the payment of the costs of
administration of this article in accordance with the budget of
the court approved therefor: Provided, That is authorized from
collections.
(d) Moneys in the crime victims compensation fund may be
expended for:
(1) The payment of the costs of administration of this
article;
(2) The payment of economic loss awards approved by the
court; and
(3) The payment of attorney and witness fees, allowed
pursuant to section nineteen of this article.
(e) The services of the office of the attorney general, as
may be required or authorized by any of the provisions of this article, shall be rendered without charge to the fund.
(d) (f) Any moneys in the crime victims compensation fund
may be deposited in the West Virginia consolidated investment
fund with the West Virginia state board of investments as
established in invested as provided in article one of six,
chapter twelve of this code, with the interest income a proper
credit credited to the crimes crime victims compensation fund.
(g) All funds in the special economic loss claim payment
fund created under the provisions of section twenty of this
article prior to the amendments made in that section enacted in
the year one thousand nine hundred ninety-nine shall be
transferred to the crime victims compensation fund within a
reasonable time from the effective date of the amendments.
(h) All gifts that are received to be used for the purposes
of this article shall be deposited into the crime victims
compensation fund.
§14-2A-20. Budget preparation; procedure for payment of claims.
(a) The clerk shall certify to the department of finance and
legislative auditor shall submit to the department of
administration, on or before the twentieth day of November of
each year, a list of all claims pursuant to this article for which the court has made a final determination and approved an
award since the last such certificate an anticipated budget for
the crime victims compensation program provided in this article
for the next fiscal year, which shall include:
(1) An estimate of the balance and receipts anticipated in
the crime victims compensation fund;
(2) Amounts anticipated to be sufficient for the payment of
all administrative expenses necessary for the administration of
this article; and
(3) Amounts anticipated to be sufficient for the payment of
awards, attorney fees, witness fees and other authorized fees,
costs or expenses that may arise under this article during the
next fiscal year.
(b) The governor shall include in his or her proposed budget
bill and revenue estimates
(1) An estimate of the balance and receipts anticipated in
the crime victims compensation fund,
(2) An itemized report of the approved awards recommended by
the court to the Legislature,
(3) Such recommendations to the Legislature for
appropriations from the crime victims compensation fund as he may deem appropriate for the payment of fees, costs and expenses
incurred, due or payable at any time from such fund, and
(4) Such recommendations to the Legislature for
appropriations for the payment of claims arising under this
article, whether accrued and determined by the court and included
in the itemization of awards mentioned in this section or arising
during the ensuing fiscal year.
(c) The Legislature shall, by general law, provide for the
authorization to pay the itemized awards arising under this
article or so much thereof as may be deemed appropriate or for
awards arising during the ensuing fiscal year and provide by
appropriation from the crime victims compensation fund for the
payment of such awards authorized and for the payment of fees,
costs and expenses as from time to time may be appropriate the
amounts submitted by the legislative auditor under subsection (a)
of this section.
(c) The clerk shall certify each authorized award and the
amount of the award and make requisition upon the crime victims
compensation fund relating thereto to the auditor.
Notwithstanding any provision of chapter twelve of this code to
the contrary, the auditor shall issue his a warrant to the treasurer without further examination or review of the claim
except for the question of if there is a sufficient unexpended
balance in the appropriation: Provided, That the state treasurer
shall establish within his office a special economic loss claim
payment fund, with funds which are transferred from the crime
victims compensation fund by an annual line item appropriation
from the Legislature.
In any case where the court has made a final award which
includes a sum for economic loss, the court shall as part of its
award order that the state auditor pay that portion of the award
which is for economic loss forthwith from the economic loss claim
fund, notwithstanding the fact that the Legislature has not yet
considered or authorized said award. Said award and order crime
victims compensation fund.
(d) The court may provide that payment be made to a claimant
or to a third party for economic losses of the claimant and said
the award and order may provide an award for the payment for
actual economic losses which are prospective as well as those
which have already been incurred.
The clerk of the court shall certify the economic loss award
and payment order to the auditor who shall proceed as set forth herein and issue his warrant to the treasurer for payment of the
economic loss award, subject to the availability of funds in the
economic loss claim payment fund.