Senate Bill No. 59
(By Senators Anderson, Minear, Ball, Boley, Minard,
Helmick, Edgell, Unger, Dittmar, Bailey and Deem)
[Introduced January 13, 2000; referred to the Committee
on the Judiciary; and then to the Committee on Finance.]
A BILL to repeal section thirteen-a, article twenty-one, chapter
twenty-nine of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to further amend said
article by adding thereto a new section, designated section
three-a; and to amend and reenact sections six, eight, nine,
ten, eleven, twelve and thirteen of said article, all
relating to public defender services; vesting the executive
director and board with authority now conferred upon the
public defender services agency and permitting the
employment of both full-time and part-time attorneys;
changing the manner of appointment of panel attorneys;
limiting panel attorneys to five hundred hours per year unless he or she obtains an order from the circuit court;
creating the public defender advisory board; authority to
remove employees and board members for misfeasance or
malfeasance; removing the sections relating to public
defender corporations funding; requiring services provided
by circuit clerks and magistrate clerks to be free of charge
to public defender corporations; authorizing imposition of
administrative service fee on vouchers by agency; and
funding of defender corporations, annual budgets and record
Be it enacted by the Legislature of West Virginia:
That section thirteen-a, article twenty-one, chapter
twenty-nine of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be repealed; that said article be
further amended by adding thereto a new section, designated
section three-a; and that sections six, eight, nine, ten, eleven,
twelve and thirteen of said article be amended and reenacted, all
to read as follows:
ARTICLE 21. PUBLIC DEFENDER SERVICES.
§29-21-3a. Public defender advisory board; duties; composition;
(a) There is hereby established an advisory board known as
the "public defender services advisory board." The purpose of
this board is to review and comment on operating policies and
procedures and advise the executive director with respect
thereto. In furtherance of its duties the board may inspect any
and all records, reports and other materials written or
maintained by public defender services or public defender
corporations insofar as maintenance of client confidentiality may
(b) The board shall be composed of three members appointed
by the governor. One of the members shall be chosen from a list
of three persons nominated by the president of the Senate. One
of the members shall be chosen from a list of three persons
nominated by the speaker of the House of Delegates. No more than
two members may be of the same political party. These members
shall serve at the will and pleasure of the governor and shall
serve without compensation except for reimbursement of reasonable
and necessary expenses. They shall continue to serve until their
successors are appointed.
(c) Notwithstanding any provision of this code to the
contrary, the board is hereby vested with the authority to remove any employee of public defender services or of any corporation or
board member thereof, the existence of which is authorized by the
provisions of section eight of this article upon a determination
by a majority of the board that misfeasance or malfeasance has
§29-21-6. Powers, duties and limitations.
(a) Consistent with the provisions of this article, the
agency is authorized to make grants to and contracts with public
defender corporations and with individuals, partnerships, firms,
corporations and nonprofit organizations, for the purpose of
providing legal representation under this article, and may make
such other grants and contracts as are necessary to carry out the
purposes and provisions of this article.
(b) The agency is authorized to accept, and employ or
dispose of in furtherance of the purposes of this article, any
money or property, real, personal or mixed, tangible or
intangible, received by gift, devise, bequest or otherwise.
(c) The agency shall establish and the executive director or
his or her designee shall operate a criminal law research center
as provided for in section seven of this article. This center
shall undertake directly, or by grant or contract, to serve as a clearinghouse for information; to provide training and technical
assistance relating to the delivery of legal representation; and
to engage in research, except that broad general legal or policy
research unrelated to direct representation of eligible clients
may not be undertaken.
(d) The agency shall establish and the executive director or
his or her designee shall operate an accounting and auditing
division to require and monitor the compliance with this article
by public defender corporations and other persons or entities
receiving funding or compensation from the agency. The executive
director shall have the authority to reduce or reject vouchers or
requests for payment submitted by panel attorneys appointed
pursuant to section nine of this article when such vouchers or
requests for payment reflect that the provisions of this article
or the rules promulgated thereunder have not been complied with.
The division shall review all plans and proposals for grants and
contracts, and shall make a recommendation of approval or
disapproval to the executive director. The division shall
prepare, or cause to be prepared, reports concerning the
evaluation, inspection or monitoring of public defender
corporations and other grantees, contractors, persons or entities receiving financial assistance under this article, and shall
further carry out the agency's responsibilities for records and
reports as set forth in section eighteen of this article.
The division shall require each public defender corporation
to submit financial statements monthly and to report monthly on
the billable and nonbillable time of its professional employees,
including time utilized in administration of the respective
offices, so as to compare such time to similar time expended in
nonpublic law offices for like activities.
The division shall provide to the executive director
assistance in the fiscal administration of all of the agency's
divisions. This assistance shall include, but not be limited to,
budget preparation and statistical analysis.
(e) The agency shall establish and the executive director or
his or her designee shall operate an appellate advocacy division
for the purpose of prosecuting litigation on behalf of eligible
clients in the supreme court of appeals. The executive director
or a person designated by the executive director shall be the
director of the appellate advocacy division. The appellate
advocacy division shall represent eligible clients upon
appointment by the circuit courts, or by the supreme court of appeals. The division may, however, refuse such appointments due
to a conflict of interest or if the executive director has
determined the existing caseload cannot be increased without
jeopardizing the appellate division's ability to provide
effective representation. In order to effectively and
efficiently utilize the resources of the appellate division the
executive director may restrict the provision of appellate
representation to certain types of cases.
The executive director is empowered to select and employ
staff attorneys to perform the duties prescribed by this
subsection. The division shall maintain records of representation
of eligible clients for record purposes only.
§29-21-8. Public defender corporations.
(a) In each judicial circuit of the state, there is hereby
created a "public defender corporation" of the circuit. The
purpose of these public defender corporations is to provide legal
representation in the respective circuits in accordance with the
provisions of this article.
(b) If the judge of a single-judge circuit, the chief judge
of a multi-judge circuit or a majority of the active members of
the bar in the circuit determine there is a need to activate any corporation, they shall certify that fact in writing to the
executive director. The executive director may allocate funds to
those corporations in the order in which he or she deems most
efficient and cost effective.
A public defender corporation may be activated solely at the
instance of the executive director with the agreement of the
public defender advisory board upon a finding supported by
objective evidence that effective representation of eligible
indigent defendants can be accomplished more effectively and
economically by the implementation of a public defender
(c) The executive director may merge, with the agreement of
the public defender advisory board, public defender corporations
to form multicircuit or regional public defender corporations
where to do so would improve the quality of services and
efficient use of resources. Public defender corporations may
employ both full-time and part-time attorneys in whatever
combination may be most cost effective.
§29-21-9. Panel attorneys.
(a) In each circuit of the state, the circuit court shall
establish and maintain regional and local panels of private attorneys-at-law who shall be available to serve as counsel for
An attorney-at-law may become a panel attorney and be
enrolled on the regional or local panel, or both, to serve as
counsel for eligible clients, by informing the court. An
agreement to accept cases generally or certain types of cases
particularly shall not prevent a panel attorney from declining an
appointment in a specific case.
(b) In all cases where an attorney-at-law is required to be
appointed for an eligible client, the appointment shall be made
by the circuit judge as follows:
(1) In circuits where a public defender office is in
operation, the judge shall appoint the public defender office
unless such appointment is not appropriate due to a conflict of
interest or unless the public defender corporation board of
directors or the public defender, with the approval of the board,
has notified the court that the existing caseload cannot be
increased without jeopardizing the ability of defenders to
provide effective representation.
(2) If the public defender office is not available for
appointment, the court shall appoint one or more permanent part-time attorneys employed by the public defender corporation
in that circuit.
(3) If there is no permanent part-time attorney available or
such an attorney is available but a conflict of interest exists,
the judge shall appoint one or more panel attorneys from the
(4) If there is no local panel attorney available, the judge
may appoint a public defender office from an adjoining circuit if
such public defender office agrees to the appointment.
(5) If the adjoining public defender office does not accept
the appointment the judge may appoint a panel attorney from an
(6) If a panel attorney from an adjoining circuit is
unavailable, the judge may appoint a panel attorney from any
§29-21-10. Public defender corporation funding; annual budgets;
funding; record keeping by public defender
(a) On or before the first day of May of each year, every
public defender corporation shall submit to the executive
director a proposed budget for the next ensuing fiscal year. The accounting and auditing division shall review all funding
applications and the executive director shall prepare
recommendations for an operating plan and annual budget for each
public defender corporation. Upon consultation with each
corporation board a funding contract shall be executed for the
fiscal year and funds committed for that purpose.
(b) Funding contracts may be amended during a fiscal year
when an amended contract is necessary to provide cost effective
representation based upon unanticipated increase in case load or
unexpected expenses are incurred.
(c) Funding of public defender corporations or other
programs or entities providing legal representation under the
provisions of this article shall be by annual grants disbursed in
such periodic allotments as the executive director shall deem
(d) All recipients of funding under this article shall
maintain such records as required by the executive director.
§29-21-11. Compensation and expenses for panel attorneys.
(a) All panel attorneys shall maintain detailed and accurate
records of the time expended and expenses incurred on behalf of
eligible clients, and upon completion of each case, exclusive of appeal, shall submit to the appointing court a voucher for
services. Claims for fees and expense reimbursements shall be
submitted to the appointing court on forms approved by the
executive director. Claims for attorney services received by
public defender services more than six months after the last date
of service shall be rejected: Provided, That no voucher
submitted for payment prior to the first day of July, two
thousand reflecting a date of service of four years or less prior
to submission shall be rejected solely due to having been
submitted more than six months after the last date of service.
The appointing court shall review the voucher to determine
if the time and expense claims are reasonable, necessary and
valid, and shall forward the voucher to the agency with an order
approving payment of the claimed amount or of a lesser sum the
court considers appropriate.
(b) Notwithstanding any other provision of this section to
the contrary, public defender services may pay by direct bill,
prior to the completion of the case, litigation expenses incurred
by attorneys appointed under this article. If properly
authenticated such billings shall not be subject to the time
limitation set forth in subsection (a) of this section.
(c) Notwithstanding any other provision of this section to
the contrary, a panel attorney may be compensated for services
rendered and reimbursed for expenses incurred prior to the
completion of the case where: (1) More than ninety days have
expired since the commencement of the panel attorney's
representation in the case; and (2) no prior payment of attorney
fees has been made to the panel attorney by public defender
services during the case. The executive director, in his or her
discretion, may authorize periodic payments where ongoing
representation extends beyond six months in duration. The
amounts of any fees or expenses paid to the panel attorney on an
interim basis, when combined with any amounts paid to the panel
attorney at the conclusion of the case, may not exceed the
limitations on fees and expenses imposed by this section.
(d) In each case in which a panel attorney provides legal
representation under this article, and in each appeal after
conviction in circuit court, the panel attorney shall be
compensated at the following rates for actual and necessary time
expended for services performed and expenses incurred subsequent
to the effective date of this article:
(1) For an attorney's work performed out of court, compensation shall be at the rate of forty-five dollars per hour.
For a paralegal's work performed out of court for the attorney,
compensation shall be at the rate of the paralegal's regular
compensation on an hourly basis or, if salaried, at the hourly
rate of compensation which would produce the paralegal's current
salary, but in no event may the compensation exceed twenty
dollars per hour. Out-of-court work includes, but is not limited
to, interviews of clients or witnesses, preparation of pleadings,
prehearing or pretrial research and all time spent waiting for
hearings before judges, magistrates, special masters or other
judicial officers. Time spent in travel may not be billed. Only
travel expenses authorized by rules promulgated pursuant to
section eleven, article eight, chapter twelve of this code may be
(2) For attorney's work performed in court, compensation
shall be at the rate of sixty-five dollars per hour. No
compensation for paralegal's work performed in court may be
allowed. In-court work includes only time spent in hearing or
trial before a judge, magistrate, special master or other
(3) The maximum amount of compensation for out-of-court and in-court work under this subsection is as follows: For
proceedings of any kind involving felonies for which a penalty of
life imprisonment may be imposed, the amount as the court may
approve; for all other eligible proceedings, three thousand
dollars unless the court, for good cause shown, approves payment
of a larger sum.
(4) Except when actually in trial no panel attorney shall be
paid for more than ten hours per day for his or her
court-appointed services. No panel attorney shall be paid for
more than five hundred hours of court-appointed work in a
calendar year unless he or she maintains an office containing
findings reflecting that there is a need for the panel attorney
to exceed the limit in order that eligible indigent clients
(e) Actual and necessary expenses incurred in providing
legal representation for proceedings of any kind involving
felonies for which a penalty of life imprisonment may be imposed,
including, but not limited to, expenses for travel, transcripts,
salaried or contracted investigative services and expert
witnesses, shall be reimbursed in an amount as the court may
approve. For all other eligible proceedings, actual and necessary expenses incurred in providing legal representation,
including, but not limited to, expenses for travel, transcripts,
salaried or contracted investigative services and expert
witnesses, shall be reimbursed to a maximum of fifteen hundred
dollars unless the court, for good cause shown, approves
reimbursement of a larger sum.
Expense vouchers shall specifically set forth the nature,
amount and purpose of expenses incurred and shall provide
receipts, invoices or other documentation required by the
executive director and the state auditor.
(1)(A) Reimbursement of expenses for production of
transcripts of proceedings reported by a court reporter is
limited to the cost per original page and per copy as set forth
in section four, article seven, chapter fifty-one of this code.
(B)(i) There may be no reimbursement of expenses for or
production of a transcript of a preliminary hearing before a
magistrate or juvenile referee, or of a magistrate court bench or
jury trial, where the preliminary hearing or jury trial has also
been recorded electronically in accordance with the provisions of
section eight, article five, chapter fifty of this code or court
(ii) Reimbursement of an appearance fee for a court reporter
who reports a proceeding other than one described in subparagraph
(i) of this paragraph, is limited to twenty-five dollars. Where
a transcript of a proceeding is produced, there may be no
reimbursement for the expense of any appearance fee.
(iii) There may be no reimbursement for hourly court
reporters' fees or fees for other time expended by the court
reporter, either at the proceeding or traveling to or from the
(C) Reimbursement of the cost of transcription of tapes
electronically recorded during preliminary hearings or magistrate
court jury trials is limited to the rates established by the
supreme court of appeals for the reimbursement of transcriptions
of electronically recorded hearings and trial.
(2) Reimbursement for any travel expense incurred in an
eligible proceeding is limited to the rates for the reimbursement
of travel expenses established by rules promulgated by the
governor pursuant to the provisions of section eleven, article
eight, chapter twelve of this code and administered by the
secretary of the department of administration pursuant to the
provisions of section forty-eight, article three, chapter five-a of this code.
(3) Reimbursement for investigative services is limited to
a rate of thirty dollars per hour for work performed by an
(f) For purposes of compensation under this section, an
appeal from a final order of the circuit court, or a writ seeking
an extraordinary remedy is considered a separate case. Appeals
from magistrate court to circuit court is considered a separate
(g) Vouchers submitted under this section shall specifically
set forth the nature of the service rendered, the stage of
proceeding or type of hearing involved, the date and place the
service was rendered and the amount of time expended in each
instance. All time claimed on the vouchers must be itemized to
the nearest tenth of an hour. If the charge against the eligible
client for which services were rendered is one of several charges
involving multiple warrants or indictments, the voucher must
indicate the fact and sufficiently identify the several charges
so as to enable the court to avoid a duplication of compensation
for services rendered. The executive director must refuse to
requisition payment for any voucher which is not in conformity with the record keeping, compensation or other provisions of this
article, or of the voucher instructions issued pursuant to
section six of this article, and in that circumstance must return
the voucher to the court or to the service provider for further
review or correction. The voucher instructions control for all
matters not specifically covered in this article.
§29-21-12. Circuit clerks, magistrate clerks and law
enforcement; duty to provide service.
Notwithstanding any other provision of this code to the
contrary, all services provided by circuit clerks and magistrate
clerks must be rendered to public defender corporations free of
charge. All services of law-enforcement personnel including
services of subpoenas and production of investigative reports,
test results or other documents shall be provided free of charge.
§29-21-13. Administrative service fee; special revenue account.
The executive director may impose an administrative service
fee of five dollars for each voucher submitted. The fee may be
collected by discounting the payment due to the service provider.
The fee shall be deposited into a special revenue account to be
known as the "Public Services Administrative Fee Account" and
shall accrue solely to the benefit of public defender services.
NOTE: The purpose of this bill is to revamp the state's
public defender system.
§29-21-3a is new; and §§29-21-6, 8, 9, 10, 11, 12 and 13
have been completely rewritten; therefore, strike-throughs and
underscoring have been omitted.