sdj-59th day

WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
SEVENTY-EIGHTH LEGISLATURE
REGULAR SESSION, 2008
FIFTY-NINTH DAY
____________

Charleston, W. Va., Friday, March 7, 2008

The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)
Prayer was offered by Pastor Matthew J. Watts, Grace Bible Church, Charleston, West Virginia.
Pending the reading of the Journal of Thursday, March 6, 2008,
On motion of Senator Green, the Journal was approved and the further reading thereof dispensed with.
The Senate proceeded to the second order of business and the introduction of guests.
The Senate then proceeded to the fourth order of business.
Senator White, from the Joint Committee on Enrolled Bills, submitted the following report, which was received:
Your Joint Committee on Enrolled Bills has examined, found truly enrolled, and on the 5th day of March, 2008, presented to His Excellency, the Governor, for his action, the following bill, signed by the President of the Senate and the Speaker of the House of Delegates:
(Com. Sub. for H. B. No. 4076), Relating to the compensation and expenses of legislators.
Respectfully submitted,
C. Randy White,
Chair, Senate Committee.
John Doyle,
Chair, House Committee.
Senator White, from the Joint Committee on Enrolled Bills, submitted the following report, which was received:
Your Joint Committee on Enrolled Bills has examined, found truly enrolled, and on the 7th day of March, 2008, presented to His Excellency, the Governor, for his action, the following bills, signed by the President of the Senate and the Speaker of the House of Delegates:
(Com. Sub. for S. B. No. 145), Relating to reasonable force in defense of self, real and personal property .
(Com. Sub. for S. B. No. 579), Appointing additional nonresident members to Bluefield's sanitary board.
(Com. Sub. for S. B. No. 704), Regulating viatical life insurance settlements.
(H. B. No. 2503), Authorizing the Division of Motor Vehicles to issue an identification card to West Virginia residents who already possess a valid driver's license.
(Com. Sub. for H. B. No. 4418), Establishing a statewide reporting system for hospitals to report their infection rates.
(H. B. No. 4478), Limiting the mid-year transfer of certain school employees working with students with exceptionalities.
(H. B. No. 4676), Continuing the permissible appropriation of Public Employees Insurance Reserve Fund moneys to the bureau for medical services.
(H. B. No. 4677), Reducing the requirement that the Director of Personnel must have five years experience in personnel management.
(H. B. No. 4712), Supplementary appropriation to the Department of Transportation-Division of Motor Vehicles.
(H. B. No. 4713), Expiring funds to the balance of the Department of Health and Human Resources, Health Care Authority.
And,
(H. B. No. 4714), Supplementary appropriation to the Department of Commerce, Department of Education and the Arts-Division of Rehabilitation Services, Department of Military Affairs and Public Safety-Fire Marshal.

Respectfully submitted,

C. Randy White,
Chair, Senate Committee.
John Doyle,
Chair, House Committee.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 4287, Clarifying that certain funds are authorized investments for funds of political subdivisions.
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 4287) contained in the preceding report from the Committee on Finance was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 4307, Relating to bona fide residents wholly or solely owning greyhounds.
With amendments from the Committee on the Judiciary pending;
Now on second reading, having been read a first time and referred to the Committee on Finance on March 4, 2008;
And reports the same back with the recommendation that it do pass as amended by the Committee on the Judiciary to which the bill was first referred.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 4433, Increasing the maximum amount of a medical student loan that may be cancelled.
With an amendment from the Committee on Education pending;
Now on second reading, having been read a first time and referred to the Committee on Finance on February 29, 2008;
And reports the same back with the recommendation that it do pass as amended by the Committee on Education to which the bill was first referred.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 4434, Establishing a higher education energy and water savings revolving loan fund.
With an amendment from the Committee on Education pending;
Now on second reading, having been read a first time and referred to the Committee on Finance on February 29, 2008;
And reports the same back with the recommendation that it do pass as amended by the Committee on Education to which the bill was first referred.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 4449, Allowing the Higher Education Policy Commission and WV Council for Community and Technical College Education to enter into lease-purchase agreements.
Now on second reading, having been read a first time and referred to the Committee on Finance on March 4, 2008;
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 4623, Relating to establishing minimum deductions.
With amendments from the Committee on Education pending;
Now on second reading, having been read a first time and referred to the Committee on Finance on March 4, 2008;
And reports the same back with the recommendation that it do pass as amended by the Committee on Education to which the bill was first referred.
Respectfully submitted,
Walt Helmick,
Chair.
The Senate proceeded to the sixth order of business.
Senators Hunter, Unger, White and Foster offered the following resolution:
Senate Concurrent Resolution No. 91-- Urging the return of West Virginia National Guard military forces from Iraq and the federal deployment of the National Guard.
Whereas, The men and women of the West Virginia National Guard, under the able leadership of Major General Allen E. Tackett have served courageously and faithfully in Afghanistan and Iraq for the past five years and deserve the respect and admiration of all West Virginians; and
Whereas, Under Article I, Section 8, Clause 15 of the United States Constitution, Congress may call forth the militia to execute the laws of the union, suppress insurrections and repel invasions. Since 1933, federal law has provided that persons enlisting in a State National Guard unit simultaneously enlist in the National Guard of the United States, a part of the United States Army. The enlistees retain their status as state guard members unless and until ordered to active federal duty and then revert to state status upon being relieved from federal service. In 1986, Congress passed and the President signed the "Montgomery Amendment", which provides that a Governor cannot withhold consent with regard to active duty outside the United States because of any objection to the location, purpose, type or schedule of such duty; and
Whereas, Under the U. S. Constitution, each state's national unit is controlled by the Governor, but can be called up for federal duty by the President, provided that the President is acting pursuant to the Constitution and laws of the United States. In October 2002, the United States Congress authorized military force under the Authorization for Use of Military Force Against Iraq, Public Law No. 107-243 (AUMF), a law enacted in part that the President is authorized to use the armed forces of the United States as he determines to be necessary and appropriate in order to: (a) Defend the national security of the United States against the continuing threat posed by Iraq; and (b) enforce all relevant United Nations Security Council Resolutions regarding Iraq. The AUMF contained neither a termination date nor a process or procedure to determine when the authorization should terminate. United States forces, including members of the West Virginia National Guard and guard members from other states, have long since addressed the purposes recited under the AUMF, and it is time for the Iraq National Guard to assume responsibility for the security and protection of their country; and
Whereas, The President may not maintain United States forces, and in particular members of the West Virginia National Guard, in Iraq other than for the purposes set forth by Congress in the AUMF. Without a specific date for withdrawal of United States forces from Iraq in the AUMF or a method or formula for determining the time for withdrawal, and in the absence of congressional legislation curing these omissions, the President is required to order the withdrawal of troops within a reasonable time and in a reasonable manner. The President has taken no such action, other than the AUMF, there is no authority under the Constitution or the laws of the United States for the continued presence of West Virginia National Guard members in Iraq. The maintenance of West Virginia National Guard members in Iraq beyond the time and scope set forth in the AUMF has resulted in significant harm to guard members and their families, including death and injury, loss of time together and financial hardship; and
Whereas, West Virginians are ever mindful of natural and man- made disasters which threaten lives and property such as the Buffalo Creek disaster of February 26, 1972, and the disastrous flood of November 1985 and the importance of having West Virginia's National Guard units prepared and ready for deployment to provide aid in any imminent emergency; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby urges the return of West Virginia National Guard military forces from Iraq and the federal deployment of the National Guard; and, be it
Further Resolved, That Congress is urged to revisit the 1986 Montgomery Amendment and adopt legislation that restores the powers of the Governors of the several states to withhold consent to federalization of their National Guards, except where a declaration of war has been adopted or where the United States faces attack or invasion and the President has invoked powers authorized by an Act of Congress to address those circumstances; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the members of the West Virginia Delegation to Congress.
Which, under the rules, lies over one day.
Senators Oliverio, Wells, Unger and Prezioso offered the following resolution:
Senate Resolution No. 35-- Designating March 9-16, 2008, as National Problem Gambling Awareness Week in West Virginia.
Whereas, On behalf of the citizens of West Virginia, the Senate joins the West Virginia Council on Problem Gambling in promoting March 9-16, 2008, as National Problem Gambling Awareness Week in West Virginia; and
Whereas, Promoting the awareness week provides individuals in the problem gambling community an opportunity to educate the public and policymakers about the social and financial effectiveness of services available for problem gambling; and
Whereas, Problem gambling is a public health issue affecting millions of Americans of all ages, races and ethnic backgrounds in all communities and which has a significant societal and economic cost; and
Whereas, Problem gambling is treatable and treatment is effective in minimizing the harm to both individuals and society as a whole; and
Whereas, Numerous individuals, professionals and organizations have dedicated their efforts to the education of the public about problem gambling and the availability and effectiveness of treatment; and
Whereas, The Senate and the West Virginia Council on Problem Gambling invite all residents of West Virginia to participate in National Problem Gambling Awareness Week; therefore, be it
Resolved by the Senate:
That the Senate hereby designates March 9-16, 2008, as National Problem Gambling Awareness Week in West Virginia; and, be it
Further Resolved, That the Senate joins the West Virginia Council on Problem Gambling in encouraging all citizens to help spread the message that there is help for problem gamblers through treatment and in supporting those who are in treatment and recovery and their families.
Which, under the rules, lies over one day.
Senators Caruth, Chafin, Helmick, Guills, Fanning, Green and Stollings offered the following resolution:
Senate Resolution No. 36--Honoring Dr. Jerry L. Beasley, retiring president of Concord University, education innovator and dedicated West Virginian.
Whereas, Dr. Jerry L. Beasley is a native of Hinton, West Virginia, and is married to Jean Dressler Beasley, with whom he shares the joy of having three daughters, Heather Lauren, Sarah Elizabeth and Leah Ellen; and
Whereas, Dr. Jerry L. Beasley graduated cum laude from Harvard College, earned his Ed. M. from Harvard University and his Ph. D. from Stanford University; and
Whereas, Dr. Jerry L. Beasley became Concord University's 17th president on July 1, 1985; and
Whereas, During Dr. Jerry L. Beasley's tenure, Concord University has attained its highest enrollment; has developed the largest endowment of any West Virginia public college; in 2002, was ranked number one in "academic reputation" among four-year public colleges in the south by U. S. News & World Report's America's Best Colleges; in 2000, was ranked number 52 in a nationwide survey of "most-wired colleges" by ZDNet; in 2003, was ranked 13th in a nationwide ranking by The Wall Street Journal of best undergraduate public colleges and universities for admission of their alumni to the nation's most selective graduate schools; and
Whereas, Dr. Jerry L. Beasley has worked tirelessly as the president of Concord University and as a member of numerous boards and commissions in an effort to enhance higher education in West Virginia; therefore, be it
Resolved by the Senate:
That the Senate hereby honors Dr. Jerry L. Beasley, retiring president of Concord University, education innovator and dedicated West Virginian; and, be it
Further Resolved, That the Senate extends its best wishes to Dr. Jerry L. Beasley and wishes him continued success on any future endeavors he may wish to pursue; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to Dr. Jerry L. Beasley.
At the request of Senator Chafin, unanimous consent being granted, the resolution was taken up for immediate consideration and reference to a committee dispensed with.
The question being on the adoption of the resolution, and on this question, Senator Oliverio demanded the yeas and nays.
The roll being taken, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of those present and voting having voted in the affirmative, the President declared the resolution (S. R. No. 36) adopted.
Thereafter, at the request of Senator Oliverio, and by unanimous consent, the remarks by Senators Caruth, Guills, Plymale, Foster, Deem and Unger regarding the adoption of Senate Resolution No. 36 were ordered printed in the Appendix to the Journal.
On motion of Senator Chafin, the Senate recessed for one minute.
Upon expiration of the recess, the Senate reconvened and resumed business under the sixth order.
Senators Sprouse, McCabe, Jenkins, Prezioso, Stollings and Kessler offered the following resolution:
Senate Resolution No. 37--Designating the month of March, 2008, as "American Red Cross Month".
Whereas, The American Red Cross was founded in 1881 and chartered by Congress in 1905; and
Whereas, The American Red Cross is recognized as a humanitarian organization which provides compassionate care in times of war and disaster; and
Whereas, The American Red Cross depends on the support of the American people to sustain the Red Cross mission; and
Whereas, In 2007, American Red Cross volunteers from West Virginia responded to more than 900 disasters statewide, assisted in 2,000 military families and trained more than 68,000 people in lifesaving courses such as CPR, First Aid and Water Safety; and
Whereas, The American Red Cross collects more than 25,000 pints of life-giving blood from generous West Virginia donors; and
Whereas, The American Red Cross could not provide its vital services without contributions from the American people; therefore, be it
Resolved by the Senate:
That the Senate hereby designates the month of March, 2008, as "American Red Cross Month"; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the appropriate representatives of the American Red Cross.
At the request of Senator Sprouse, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
On motion of Senator Chafin, the Senate recessed for one minute.
Upon expiration, the Senate reconvened and, at the request of Senator Chafin, and by unanimous consent, returned to the second order of business and the introduction of guests.
Senator Chafin announced that in the meeting of the Committee on Rules previously held, the committee, in accordance with rule number seventeen of the Rules of the Senate, had removed from unfinished business, Senate Concurrent Resolution No. 57 and Senate Concurrent Resolution No. 90.
The Senate proceeded to the seventh order of business.
Senate Concurrent Resolution No. 57, Requesting Joint Committee on Government and Finance study oil and gas wells.
Having been removed from unfinished business in earlier proceedings today, no further action thereon was taken.
Senate Concurrent Resolution No. 85, Requesting Joint Committee on Government and Finance study small group insurance coverage.
On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Banking and Insurance; and then to the Committee on Rules.
Senate Concurrent Resolution No. 86, Requesting Joint Committee on Government and Finance study consent to certain minors' health care.
On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on the Judiciary; and then to the Committee on Rules.
Senate Concurrent Resolution No. 87, Requesting Legislative Oversight Commission on Health and Human Resources Accountability study State Board of Pharmacy controlled substance database access.
On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Health and Human Resources; and then to the Committee on Rules.
Senate Concurrent Resolution No. 89, Requesting Joint Committee on Government and Finance study coal industry's economic and environmental impact.
On unfinished business, coming up in regular order, was reported by the Clerk.
On motion of Senator Chafin, the resolution was referred to the Committee on Rules.
Senate Concurrent Resolution No. 90, Requesting Joint Committee on Government and Finance study severance tax effects on natural gas and oil industry.
Having been removed from unfinished business in earlier proceedings today, no further action thereon was taken.
The Senate proceeded to the eighth order of business.
Eng. House Bill No. 3201, Authorizing the tax commissioner to refuse, revoke, suspend or refuse to renew a business registration certificate for a business that is the alter ego, nominee or instrumentality of a business in certain situations.
On third reading, coming up in regular order, was reported by the Clerk.
At the request of Senator Chafin, unanimous consent being granted, further consideration of the bill was deferred until the conclusion of bills on today's second reading calendar.
Eng. Com. Sub. for House Bill No. 3215, Removing the administrative link between Shepherd University and Blue Ridge Community and Technical College.
On third reading, coming up in regular order, was read a third time and put upon its passage.
Following extended discussion,
The question being "Shall Engrossed Committee Substitute for House Bill No. 3215 pass?"
On the passage of the bill, the yeas were: Bailey, Bowman, Chafin, Edgell, Facemyer, Fanning, Foster, Green, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, Minard, Plymale, Prezioso, Stollings, Unger, Wells, White, Yoder and Tomblin (Mr. President)--24.
The nays were: Barnes, Boley, Caruth, Deem, Guills, McKenzie, Oliverio, Sprouse and Sypolt--9.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 3215) passed.
The following amendment to the title of the bill, from the Committee on Finance, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 3215--A Bill to repeal §18B- 1-7 of the Code of West Virginia, 1931, as amended; to repeal §18B- 1A-7 of said code; to repeal §18B-1B-11 of said code; to repeal §18B-2B-6a of said code; to repeal §18B-6-1 of said code; to repeal §18B-14-8 of said code; to amend and reenact §18B-1-2 and §18B-1-8 of said code; to amend and reenact §18B-1B-6 of said code; to amend and reenact §18B-1C-2 of said code; to amend and reenact §18B-2A-1, §18B-2A-2 and §18B-2A-4 of said code; to amend said code by adding thereto a new section, designated §18B-2A-7a; to amend and reenact §18B-2B-6 of said code; to amend and reenact §18B-2C-1 and §18B-2C- 3 of said code; to amend and reenact §18B-3-3 of said code; to amend and reenact §18B-3C-5, §18B-3C-8, §18B-3C-12, §18B-3C-13 and §18B-3C-14; to amend said code by adding thereto a new section, designated §18B-3C-15; and to amend and reenact §18B-8-3 of said code, all relating to higher education generally; state institutions of higher education; statewide network of independently accredited community and technical colleges; modifying certain powers and duties of West Virginia Council for Community and Technical College Education, Higher Education Policy Commission and institutional boards of governors; defining terms; designating certain community and technical colleges as independent state institutions of higher education and removing administrative link to former sponsoring institutions; clarifying student rights under certain circumstances; providing for appointment of institutional presidents; specifying contract terms and evaluation procedures; modifying title of certain institutional employees; providing for continuation in office; abolishing institutional boards of advisors and establishing boards of governors for certain community and technical colleges; providing for initial appointments to boards of governors; quorums; establishing eligibility criteria and defining membership; requiring institutional master plans and compacts focused on achieving state goals, objectives and priorities; providing for transfer of certain orders, resolutions, rules and obligations from former sponsoring institutions to certain boards of governors; requiring division of assets and liabilities by date certain; providing guidelines for division of assets and liabilities; providing mechanism and time lines for resolution of disputes; prohibiting challenge of certain decisions in state courts; modifying requirements for certain rules; requiring certain legislative and emergency rules; specifying approval procedure for emergency rules; clarifying certain reporting requirements; modifying procedure for establishing priorities for certain capital projects; modifying specifications for development of certain budgets; clarifying and redefining relationships between and among certain higher education boards and institutions; making legislative findings and specifying legislative intent; defining statewide network of independently accredited community and technical colleges; establishing core mission, objectives and priorities for independent community and technical colleges; authorizing certain governing boards to change institutional name by date certain; modifying number of lay members on certain governing boards; authorizing certain governing boards to maintain association with former sponsoring institutions under certain circumstances; continuing certain contracts related to program delivery and provision of certain services; making certain governing boards responsible for maintaining or achieving independent accreditation and essential conditions; requiring former sponsoring institutions to provide certain services for specified period; modifying fee requirements and limitations; specifying contract terms; providing for contract modification under certain circumstances; establishing Pierpont Community and Technical College as an independent state institution of higher education; defining institutional mission and duties and responsibilities of governing boards; requiring independent accreditation by date certain; providing for program accreditation by Fairmont State University under contract until certain date and requiring approval of contract terms by Council for Community and Technical College Education; directing Council to take steps necessary to achieve independent accreditation status; providing for severing accreditation contract between institutions under certain circumstances; establishing advanced technology centers; defining mission, goals and objectives; establishing boards of advisors; specifying membership and terms of office; providing for transition oversight and implementation by Legislative Oversight Commission on Education Accountability; providing for salary increase when faculty member is promoted in rank; making technical corrections; and deleting obsolete provisions.
Senator Chafin moved that the bill take effect July 1, 2008.
On this question, the yeas were: Bailey, Bowman, Chafin, Edgell, Facemyer, Fanning, Foster, Green, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, Minard, Plymale, Prezioso, Stollings, Unger, Wells, White, Yoder and Tomblin (Mr. President)--24.
The nays were: Barnes, Boley, Caruth, Deem, Guills, McKenzie, Oliverio, Sprouse and Sypolt--9.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 3215) takes effect July 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Thereafter, at the request of Senator Sprouse, and by unanimous consent, the remarks by Senators Boley and Deem regarding the passage of Engrossed Committee Substitute for House Bill No. 3215 were ordered printed in the Appendix to the Journal.
Eng. Com. Sub. for House Bill No. 4010, Removing the limitation on terms for members on the board of library directors.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4010) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4010) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. House Bill No. 4016, Updating meaning of federal adjusted gross income and certain other terms used in West Virginia Personal Income Tax Act.
On third reading, coming up in regular order, with the right having been granted on yesterday, Thursday, March 6, 2008, for amendments to be received on third reading, was reported by the Clerk.
At the request of Senator Chafin, unanimous consent being granted, the bill was laid over one day, retaining its place on the calendar, and with the right for amendments to be considered on third reading remaining in effect.
Eng. House Bill No. 4017, Updating meaning of federal taxable income and certain other terms used in West Virginia Corporation Net Income Tax Act.
On third reading, coming up in regular order, with the right having been granted on yesterday, Thursday, March 6, 2008, for amendments to be received on third reading, was reported by the Clerk.
At the request of Senator Chafin, unanimous consent being granted, the bill was laid over one day, retaining its place on the calendar, and with the right for amendments to be considered on third reading remaining in effect.
Eng. Com. Sub. for House Bill No. 4036, Granting the board of Respiratory Care Practitioners rulemaking authority and the issuance of temporary permits to students.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4036) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4036) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 4156, Permitting a governing body of a municipality to place a lien on property in an amount equal to the demolition and removal of a hazardous structure.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Unger, Wells, White and Tomblin (Mr. President)--29.
The nays were: Barnes, Love, Sypolt and Yoder--4.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4156) passed.
The following amendment to the title of the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4156--A Bill to amend and reenact §8-12-16 of the Code of West Virginia, 1931, as amended, relating to authorizing municipalities to place a lien on property in an amount that reflects the costs incurred by the municipality for repairing, altering or improving, or of vacating and closing, removing or demolishing any dwelling or building on the property.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4337, Authorizing the Board of Barbers and Cosmetologists to increase fees for one year.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Bowman, Caruth, Chafin, Deem, Edgell, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Wells, White and Tomblin (Mr. President)--28.
The nays were: Boley, Facemyer, Sypolt, Unger and Yoder--5.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4337) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 4381, Relating to an assigned risk plan and guaranty association account for workers' compensation insurance.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4381) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4381) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 4386, Authorizing municipalities to create an annual vacant property registration.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Unger, Wells, White and Tomblin (Mr. President)--30.
The nays were: Barnes, Sypolt and Yoder--3.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4386) passed.
The following amendment to the title of the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4386--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §8-12-16a, relating to uninhabitable property in municipalities; authorizing municipalities to establish property registration and assess fees by ordinance; procedures and requirements for the property registration and fees; establishing appeal process; and process for delinquent fees.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4389, Removing requirement that resident violators of traffic laws be required to sign citations.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4389) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. House Bill No. 4394, Restoring the licensure exemption for certain contractors of manufactured housing installation.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4394) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4394) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 4420, Imposing corporate net income tax on certain regulated investment companies and real estate investment trusts used as tax sheltering vehicles.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4420) passed with its title.
Senator Chafin moved that the bill take effect January 1, 2009.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4420) takes effect January 1, 2009.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. House Bill No. 4644, Relating to the forfeiture of bail.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: Barnes--1.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4644) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: Barnes--1.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4644) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 4664, Clarifying the purpose of the Purchasing Division.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4664) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 4692, Permitting depositories of state, county, municipal and other public moneys to pool securities.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4692) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
At the request of Senator Kessler, and by unanimous consent, the Senate returned to the sixth order of business, which agenda includes the making of main motions.
On motion of Senator Kessler, the Senate requested the return from the House of Delegates of
Eng. Com. Sub. for House Bill No. 4139, Relating to licensing persons using bioptic telescopic devices to operate a motor vehicle.
Passed by the Senate on yesterday, Thursday, March 6, 2008,
The bill now being in the possession of the Senate,
On motion of Senator Kessler, the Senate reconsidered the vote as to the passage of the bill.
The vote thereon having been reconsidered,
At the request of Senator Kessler, unanimous consent was granted to offer an amendment to the bill on third reading.
Thereupon, on motion of Senator Kessler, the following amendment to the bill was reported by the Clerk and adopted:
On page eight, section one, line ninety-nine, by striking out the words "a nondriver" and inserting in lieu thereof the word "an".
The bill, as just amended, was again ordered to third reading.
Engrossed Committee Substitute for House Bill No. 4139 was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: Sprouse--1.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4139) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Pending announcement of meetings of standing committees of the Senate, including the Committee on Rules,
On motion of Senator Chafin, the Senate recessed until 3 p.m. today.
Upon expiration of the recess, the Senate reconvened.
Senator Chafin announced that in the meeting of the Committee on Rules previously held, the committee, in accordance with rule number seventeen of the Rules of the Senate, had removed from the Senate second reading calendar, Eng. Com. Sub. for House Bill No. 4092.
Senator Chafin also announced that in the same meeting, the Committee on Rules, in accordance with rule number seventeen of the Rules of the Senate, had placed consideration of Engrossed Committee Substitute for House Bill No. 4021, Engrossed Committee Substitute for House Bill No. 4022, Engrossed Committee Substitute for House Bill No. 4032, Engrossed Committee Substitute for House Bill No. 4059, Engrossed Committee Substitute for House Bill No. 4094, Engrossed Committee Substitute for House Bill No. 4121, Engrossed Committee Substitute for House Bill No. 4331, Engrossed Committee Substitute for House Bill No. 4333, Engrossed House Bill No. 4348, Engrossed Committee Substitute for House Bill No. 4402, Engrossed Committee Substitute for House Bill No. 4404, Engrossed Committee Substitute for House Bill No. 4438, Engrossed House Bill No. 4465, Engrossed House Bill No. 4513, Engrossed Committee Substitute for House Bill No. 4515, Engrossed Committee Substitute for House Bill No. 4527, Engrossed House Bill No. 4567, Engrossed Committee Substitute for House Bill No. 4617, Engrossed Committee Substitute for House Bill No. 4619 and Engrossed Committee Substitute for House Bill No. 4637 preceding consideration of all other bills on today's second reading calendar.
The Senate proceeded to the ninth order of business.
Eng. Com. Sub. for House Bill No. 4021, Revising mining safety equipment requirements and enhancing penalties for crimes against mining property.
On second reading, coming up out of regular order, was reported by the Clerk.
At the request of Senator Kessler, unanimous consent being granted, further consideration of the bill was deferred until the conclusion of bills on today's second reading calendar, following consideration of Engrossed House Bill No. 3201 already placed in that position.
Eng. Com. Sub. for House Bill No. 4022, Relating to compensation and expenses of panel attorneys providing public defender services.
On second reading, coming up out of regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §29-21-10, §29-21-11 and §29-21-12 of the Code of West Virginia, 1931, as amended, be repealed; that said code be amended by adding thereto a new section, designated §29-21-3b; and that §29-21-6, §29-21-8, §29-21-9, §29-21-13 and §29-21-13a of said code be amended and reenacted, all to read as follows:
ARTICLE 21. PUBLIC DEFENDER SERVICES.

§29-21-3b. Indigent Defense Commission.

(a) There is hereby established the Indigent Defense Commission to provide assistance to Public Defender Services with regard to the general policies and procedures of the agency, including, but not limited to, the opening of public defender offices throughout the state and the establishment of performance measures for the qualitative review of indigent defense.
(b) In order to demonstrate a collaborative approach to solving criminal justice problems, the commission shall consist of the Executive Director of Public Defender Services, who shall serve as chair, the Director of the Prosecuting Attorneys Institute, and the following members appointed by the Governor:
(1) One former or retired circuit judge;
(2) Two lawyers experienced in providing legal services to the indigent;
(3) One current chief public defender; and
(4) One nonlawyer with a demonstrated commitment to providing legal services to the indigent.
(c) The commission shall meet at the times and places specified by the call of the chair: Provided, That the commission shall meet no less than four times each year. Members shall serve without compensation but may receive reimbursement of actual and necessary expenses for each day or portion thereof engaged in this discharge of official duties in a manner consistent with the guidelines of the Travel Management Office of the Department of Administration.
(d) The appointed members of the commission serve four-year terms that shall coincide with the term of the Governor.
(e) The commission has the following powers and duties:
(1) To develop standards regarding the qualifications and training for public defenders, assistant public defenders and staff;
(2) To explore opportunities related to the training of appointed panel attorneys;
(3) To evaluate, on an annual basis, the caseloads of public defenders and appointed panel attorneys;
(4) To develop standards for providing and compensating expert witnesses, investigators and other persons who provide services related to legal representation under this article;
(5) To study, monitor and evaluate existing standards for determining eligibility for legal representation under section sixteen of this article;
(6) To approve the creation of additional public defender corporations, the activation of public defender corporations and the formation of multicircuit or regional public defender corporations in accordance with the provisions of section eight of this article; and
(7) To monitor and make recommendations regarding the following activities of the board of directors of each public defender corporation receiving funding pursuant to this article:
(A) The appointment of the public defender and any assistant public defenders pursuant to subdivision (1), subsection (c), section fifteen of this article;
(B) The fixing of professional and clerical salaries pursuant to subdivision (2), subsection (c), section fifteen of this article; and
(C) The removal of any public defender, assistant public defender or other employee for misfeasance, malfeasance or nonfeasance pursuant to subdivision (3), subsection (c), section fifteen of this article.
§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~~ any other grants and contracts as that 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~~ related 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 ~~designate~~ 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. ~~This~~ The accounting and auditing 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 accounting and auditing 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 accounting and auditing division shall require each public defender corporation to ~~periodically~~ submit financial statements monthly and to report monthly on the billable and nonbillable time of its professional employees, including time ~~utilized~~ used in administration of the respective offices, so as to compare ~~such~~ the time to similar time expended in nonpublic law offices for ~~like~~ similar activities. The accounting and auditing division shall provide to the executive director assistance in the fiscal administration of all of the agency's divisions. ~~Such~~ This assistance shall include, but not be limited to, budget preparation and statistical analysis.
(e) The agency shall establish and the executive director or ~~a person designated by the executive director~~ 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~~ his or her designee 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~~ the 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~~ use 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~~ may select and employ staff attorneys to perform the duties prescribed by this subsection. The appellate division shall maintain ~~vouchers and~~ records ~~for~~ of representation of eligible clients for record purposes only.
§29-21-8. Public defender corporations; establishment thereof.
(a) (1) In each judicial circuit of the state, there is hereby created a public defender corporation of the circuit: Provided, That the executive director, with the approval of the Indigent Defense Commission, may authorize the creation of an additional public defender corporation in a judicial circuit where the creation of such additional public defender corporation would improve the quality of legal representation, assure the prudent and resourceful expenditure of state funds and further the purposes of this article: Provided, however, That prior to the creation of additional public defender corporations in accordance with this subsection, the executive director shall provide a report to the Secretary of the Department of Administration regarding the caseload and annual budget of the existing corporation and all payments made to panel attorneys appointed in the circuit.
(2) The purpose of these public defender corporations is to provide legal representation in the respective circuits in accordance with the provisions of this article. A public defender corporation may employ full-time attorneys and employ part-time attorneys in whatever combination that the public defender corporation deems most cost effective.
(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 the corporation, they shall certify that fact in writing to the executive director If the executive director, with the approval of the Indigent Defense Commission, determines there is a need to activate a corporation in a judicial circuit of the state, he or she shall certify that fact in writing to the Secretary of the Department of Administration. The executive director shall allocate funds to those ~~corporations so certifying~~ certified corporations in the order in which he or she deems most efficient and cost effective.
(c) The executive director, with the approval of the Indigent Defense Commission, may require public defender corporations ~~may apply in writing to the executive director for permission~~ to merge to form multicircuit or regional public defender corporations where a merger would improve the quality of legal representation, assure the prudent and resourceful expenditure of state funds and further the purposes of this article. ~~Applications for mergers shall be subject to the review procedures set forth in section eleven of this article.~~
§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~~ are available to serve as counsel for eligible clients. 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~~ may 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 in the following order of preference:
(1) In circuits where a public defender office is in operation, the judge shall appoint the public defender office unless ~~such~~ an 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 panel attorneys from the local panel;
(3) If there is no local panel attorney available, the judge shall appoint one or more panel attorneys from the regional panel;
(4) If there is no regional 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 adjoining circuit; or
(6) If a panel attorney from an adjoining circuit is unavailable, the judge may appoint a panel attorney from any circuit. In circuits where no public defender office is in operation, the judge shall first refer to the local panel and then to the regional panel in making appointments, and if an appointment cannot be made from the panel attorneys, the judge may appoint the public defender office of an adjoining circuit if the office agrees to the appointment. In any circuit, when there is no public defender, or assistant public defender, local panel attorney or regional panel attorney available, the judge may appoint one or more qualified private attorneys to provide representation, and such private attorney or attorneys shall be treated as panel attorneys for that specific case.
(c) In any given case, the appointing judge may alter the order in which attorneys are appointed if the case requires particular knowledge or experience on the part of the attorney to be appointed: Provided, That any time a court, in appointing counsel pursuant to the provisions of this section, alters the order of appointment as set forth herein, the order of appointment shall contain the court's reasons for doing so.

§29-21-13. Approval of public defender corporation funding applications; funding; recordkeeping by public defender corporations.

(a) On or before the first day of May of each year, each active public defender corporation shall submit to the executive director a funding application and a proposed budget for the ensuing fiscal year. The accounting and auditing division shall review all funding applications and prepare recommendations for an operating plan and annual budget for each public defender corporation. The executive director shall review the funding applications and the accounting and auditing recommendations and shall, in consultation with ~~the applicants~~ the board of directors of each public defender corporation, prepare a plan for providing legal services, execute a funding contract for the fiscal year and commit funds for that purpose.
(b) Upon final approval of a funding application by the executive director, the approved budget shall be set forth in an approval notice. The total cost to the agency shall not exceed the amount set forth in the approval notice and the agency shall not be obligated to reimburse the recipient for costs incurred in excess of the amount unless and until a program modification has been approved in accordance with the provisions of this article. At the discretion of the executive director, when caseloads increase or unusual expenses occur, funding contracts may be amended during a fiscal year if necessary to provide cost effective representation.
(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 appropriate.
(d) All recipients of funding under this article shall maintain such records as required by the executive director.
§29-21-13a. 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. The executive director shall establish guidelines for the submission of vouchers and claims for fees and expense reimbursements under this section. Claims submitted more than ~~four years~~ ninety calendar days after the last date of service shall be rejected, unless for good cause, the appointing court authorizes in writing an extension: Provided, That claims where the last date of service occurred prior to the first day of July, two thousand eight, shall be rejected unless submitted prior to the first day of January, two thousand nine.
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.
(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 six months 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, shall 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 attorney's work performed out of court, compensation shall be at the rate of forty-five dollars per hour. For 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 shall the compensation exceed twenty dollars per hour. Out-of-court work includes, but is not limited to, travel, interviews of clients or witnesses, preparation of pleadings and prehearing or pretrial research.
(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 shall be allowed. In-court work includes, but is not limited to, all time spent awaiting hearing or trial ~~if the presence of the attorney is required~~ before a judge, magistrate, special master or other judicial officer.
(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.
(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~~ one thousand five 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 page as set forth in section four, article seven, chapter fifty-one of this code. Reimbursement of the cost of copies of such transcripts is limited to the cost per copy page as provided for under said section. It is the duty of the executive director of Public Defender Services to maintain computer records of all transcripts, including originals and copies, for which payment has been made.
(B) (i) There shall 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 ~~jury~~ trial, ~~which has been reported by a court reporter at the request of the attorney,~~ where ~~the preliminary~~ such 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 rule.
(ii) Reimbursement of the expense of an appearance fee for a court reporter who reports a proceeding other than one described in subparagraph (i) of this paragraph ~~or who reports a proceeding which is not reported by an official court reporter acting in his or her official capacity for the court,~~ is limited to twenty-five dollars. Where a transcript of a proceeding is produced, there shall be no reimbursement for the expense of any appearance fee. Where a transcript is requested by the attorney after an appearance fee has been paid, reimbursement of the expense incurred to obtain the transcript is limited to the cost of producing the transcript, within the prescribed limitations of paragraph (a) of this subdivision, less the amount of the paid appearance fee.
(iii) ~~Reimbursement of travel expenses incurred for travel by a court reporter is subject to the limitations provided by subdivision (2) of this subsection.~~
~~(iv)~~ Except for the appearance fees provided in this paragraph, there shall 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 proceeding.
(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~~ one dollar per page.
(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 investigator.
(f) For purposes of compensation under this section, an appeal from magistrate court to circuit court, an appeal from a final order of the circuit court or a proceeding seeking an extraordinary remedy made to the Supreme Court of Appeals shall be considered a separate case.
(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 shall 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 shall 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 shall refuse to requisition payment for any voucher which is not in conformity with the recordkeeping, compensation or other provisions of this article or the voucher guidelines established issued pursuant to subsection (a) of this section and in such circumstance shall return the voucher to the court or to the service provider for further review or correction.
(h) Vouchers submitted under this section after the first day of July, two thousand eight, shall be reimbursed within ninety days of receipt. Reimbursements after ninety days shall bear interest from the ninety-first day at the legal rate in effect for the calendar year in which payment is due.
(i) Vouchers submitted for fees and expenses involving child abuse and neglect cases shall be processed for payment before processing vouchers submitted for all other cases.
The bill (Eng. Com. Sub. for H. B. No. 4022), as amended, was then ordered to third reading.
Pending announcement of meetings of standing committees of the Senate,
On motion of Senator Chafin, the Senate recessed until 5:30 p.m.
Upon expiration of the recess, the Senate reconvened and resumed consideration of
Eng. Com. Sub. for House Bill No. 4022, Relating to compensation and expenses of panel attorneys providing public defender services.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--31.
The nays were: Boley--1.
Absent: Bailey and Sharpe--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4022) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Plymale, Prezioso, Sprouse, Stollings, Unger, Wells, White, Yoder and Tomblin (Mr. President)--29.
The nays were: Boley, Oliverio and Sypolt--3.
Absent: Bailey and Sharpe--2.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4022) passed.
The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4022--A Bill to repeal §29- 21-10, §29-21-11 and §29-21-12 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §29-21-3b; and to amend and reenact §29-21-6, §29-21-8, §29-21-9, §29-21-13 and §29-21-13a of said code, all relating to Public Defender Services generally; creating the Indigent Defense Commission; specifying members and their terms; specifying certain powers and duties of the Indigent Defense Commission; requiring public defender corporations to submit monthly financial statements and reports; providing requirements for the creation, activation and merger of public defender corporations; authorizing employment of certain attorneys; providing for the order of appointment of panel attorneys; establishing requirements for funding applications; requiring corporations to submit proposed budgets; authorizing amended funding contracts; authorizing executive director to establish guidelines for submission of claims and vouchers; establishing certain deadlines for submitting claims; providing for periodic payment of fees to panel attorneys; clarifying in-court work and meaning of separate cases; establishing limitations on reimbursement of certain expenses; requiring vouchers be reimbursed within a certain period; providing for interest accruing on late reimbursements; and giving preference to processing vouchers involving child abuse and neglect cases.
Senator Chafin moved that the bill take effect July 1, 2008.
On this question, the yeas were: Barnes, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Plymale, Prezioso, Sprouse, Stollings, Unger, Wells, White, Yoder and Tomblin (Mr. President)--29.
The nays were: Boley, Oliverio and Sypolt--3.
Absent: Bailey and Sharpe--2.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4022) takes effect July 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4032, Relating to payment of wages through a direct deposit system.
On second reading, coming up out of regular order, was read a second time.
The following amendment to the bill, from the Committee on Finance, was reported by the Clerk and adopted:
On pages two and three, section three, lines thirteen through nineteen, by striking out all of subdivision (3) and inserting in lieu thereof a new subdivision (3), to read as follows:
(3) By deposit or electronic transfer of immediately available funds into an employee's payroll card account in a federally insured depository institution. The term "payroll card account" means an account in a federally insured depository institution that is directly or indirectly established through an employer and to which electronic fund transfers of the employee's wages, salary, commissions or other compensation are made on a recurring basis, whether the account is operated or managed by the employer, a third-party payroll processor, a depository institution or another person. "Payroll card" means a card, code or combination thereof or other means of access to an employee's payroll card account, by which the employee may initiate electronic fund transfers or use a payroll card to make purchases or payments. Payment of employee compensation by means of a payroll card must be agreed upon in writing by both the person, form or corporation paying the compensation and the person being compensated.
The bill (Eng. Com. Sub. for H. B. No. 4032), as amended, was then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4032) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4032) passed.
The following amendment to the title of the bill, from the Committee on Finance, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4032--A Bill to amend and reenact §21-5-3 of the Code of West Virginia, 1931, as amended, relating to payment of wages through a direct deposit system using an electronic payment card or other means of electronic transfer; defining terms; and requiring written agreement to use the payroll card.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4059, Relating to medical qualifications for school bus operators.
On second reading, coming up out of regular order, was read a second time.
The following amendment to the bill, from the Committee on Health and Human Resources, was reported by the Clerk and adopted:
On page four, section four, after line thirty-six, by adding a new subsection, designated subsection (e), to read as follows:
(e) Compliance with or failure to comply by a health care provider licensed and authorized pursuant to chapter thirty of this code, with the reporting requirements of the division of motor vehicles regarding the provisions of subsection (c) of this section does not constitute negligence, nor may compliance or noncompliance with the requirements of this section be admissible as evidence of negligence in any civil or criminal action.
The bill (Eng. Com. Sub. for H. B. No. 4059), as amended, was then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4059) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4059) passed.
The following amendment to the title of the bill, from the Committee on Education, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4059--A Bill to amend and reenact §18A-2-4 of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to employment of school bus operators issued passenger endorsement on commercial driver license through intrastate waiver program for diabetes; eligibility for employment; conditions; negating negligence for noncompliance.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4094, Relating to reimbursement of compensation paid to certain state employees for job-related training, education or professional development.
On second reading, coming up out of regular order, was read a second time.
The following amendment to the bill, from the Committee on Finance, was reported by the Clerk and adopted:
On page five, section two, line twenty-three, after the word "circumstances" by inserting the word "when".
The bill (Eng. Com. Sub. for H. B. No. 4094), as amended, was then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4094) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4094) passed.
The following amendment to the title of the bill, from the Committee on Finance, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4094--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §6C-4-1, §6C-4-2 and §6C-4-3, all relating to reimbursement of compensation paid to certain state employees for training, education and professional development; defining terms; requiring division of personnel propose rules for legislative approval; and setting forth exemptions.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4121, Authorizing the participation of local governments in a purchasing card program to be administered by the Auditor.
On second reading, coming up out of regular order, was read a second time and ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4121) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--31.
The nays were: Sprouse--1.
Absent: Bailey and Sharpe--2.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4121) passed.
The following amendment to the title of the bill, from the Committee on Finance, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4121--A Bill amend the Code of West Virginia, 1931, as amended, by adding thereto three new sections, designated §6-9-2a, §6-9-2b and §6-9-2c; to amend said code by adding thereto a new section, designated §7-5-7a; and to amend and reenact §8-12-5 of said code, all relating to authorizing the participation of local governments in a purchasing card program to be administered by the Auditor as chief inspector of public offices; authorizing auditor to contract with institutions for provision of the cards; authorizing auditor to propose rules; creating local Government Purchasing Card Expenditure Fund; use of moneys in fund; legislative appropriation of fund; and creating offenses and criminal penalties.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4331, Eliminating the requirement to send surrendered driver's licenses back to the original state of licensure.
On second reading, coming up out of regular order, was read a second time.
The following amendment to the bill, from the Committee on Transportation and Infrastructure, was reported by the Clerk and adopted:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 2. ISSUANCE OF LICENSE, EXPIRATION AND RENEWAL.

§17B-2-1a. Surrender of license from other state or jurisdiction prior to receipt of license from this state; examination; fees required.

(a) The ~~division of motor vehicles~~ Division of Motor Vehicles shall not issue a driver's license to a person who holds a valid license to operate a motor vehicle issued by another state or jurisdiction unless or until the applicant shall surrender to the division the foreign license, or the person has signed and submitted to the division an affidavit to the effect that the person has surrendered all valid licenses issued to him or her by other states or jurisdictions. Any surrendered license issued by any other state or jurisdiction shall be ~~returned to the division of motor vehicles or similar agency in that state or jurisdiction together with a notice~~ destroyed or at the discretion of the division retained by the division and the division shall notify the original state of licensure that the person who surrendered the license has been licensed in this state. It shall be unlawful for a person to possess more than one valid driver's license at any time.
(b) Every driver shall, within thirty days after taking up residence in this state, apply to the division for a driver's license as prescribed in this article. For the purposes of this chapter the presumption that a natural person is a resident of this state is based on the provisions of section one-a, article three, chapter seventeen-a of this code. The division may assign the driver's license class, type, endorsements or restrictions based on the applicant's prior licensing status, age and the type of licensing system used by the state of prior licensing.
(c) All other applicable provisions of this article relating to issuance, fees, expiration and renewal of licenses, and driver examination of applicants shall also apply to this section.
§17B-2-3a. Graduated driver's licenses.
(a) Any person under the age of eighteen may not operate a motor vehicle unless he or she has obtained a graduated driver's license in accordance with the three-level graduated driver's license system described in the following provisions.
(b) Any person under the age of twenty-one, regardless of class or level of licensure, who operates a motor vehicle with any measurable alcohol in his or her system is subject to the provisions of section two, article five, chapter seventeen-c of this code and section two, article five-a of said chapter. Any person under the age of eighteen, regardless of class or licensure level, is subject to the mandatory school attendance provisions of section eleven, article eight, chapter eighteen of this code.
(c) Level one instruction permit. -- An applicant who is fifteen years or older meeting all other requirements prescribed in this code may be issued a level one instruction permit.
(1) Eligibility. -- The division shall not issue a level one instruction permit unless the applicant:
(A) Presents a completed application, as prescribed by the provisions of section six of this article, and which is accompanied by a writing, duly acknowledged, consenting to the issuance of the graduated driver's license and executed by a parent or guardian entitled to custody of the applicant;
(B) Presents a certified ~~birth certificate~~ copy of a birth certificate issued by a state or other governmental entity responsible for vital records or a valid and unexpired passport issued by the United States government, evidencing that the applicant meets the minimum age requirement and is of verifiable identity;
(C) Passes the vision and written knowledge examination and completes the driving under the influence awareness program, as prescribed in section seven of this article;
(D) Presents a current school enrollment form or otherwise shows compliance with the provisions of section eleven, article eight, chapter eighteen of this code; and
(E) Pays a fee of five dollars which shall permit the applicant two attempts at the written knowledge test.
(2) Terms and conditions of instruction permit. -- A level one instruction permit issued under the provisions of this section is valid until thirty days after the date the applicant attains the age of eighteen and is not renewable. However, any permit holder who allows his or her permit to expire prior to successfully passing the road skills portion of the driver examination, and who has not committed any offense which requires the suspension, revocation or cancellation of the instruction permit, may reapply for a new instruction permit under the provisions of section six of this article. The division shall immediately revoke the permit upon receipt of a second conviction for a moving violation of traffic regulations and laws of the road or violation of the terms and conditions of a level one instruction permit, which convictions have become final unless a greater penalty is required by this section or any other provision of this code. Any person whose instruction permit has been revoked is disqualified from retesting for a period of ninety days. However, after the expiration of ninety days, the person may retest if otherwise eligible. In addition to all other provisions of this code for which a driver's license may be restricted, suspended, revoked or canceled, the holder of a level one instruction permit may only operate a motor vehicle under the following conditions:
(A) Under the direct supervision of a licensed driver, twenty-one years of age or older, or a driver's education or driving school instructor who is acting in an official capacity as an instructor, who is fully alert and unimpaired, and the only other occupant of the front seat. The vehicle may be operated with no more than two additional passengers, unless the passengers are family members;
(B) Between the hours of five a.m. and eleven p.m.;
(C) All occupants must use safety belts in accordance with the provisions of section forty-nine, article fifteen, chapter seventeen-c of this code;
(D) Without any measurable blood alcohol content, in accordance with the provisions of subsection (h), section two, article five, chapter seventeen-c of this code; and
(E) Maintains current school enrollment or otherwise shows compliance with the provisions of section eleven, article eight, chapter eighteen of this code.
(F) A holder of a level one instruction permit who is under the age of eighteen years may not use a wireless communication device while operating a motor vehicle, unless the use of the wireless communication device is for contacting a 911 system. A law-enforcement officer may enforce the provisions of this paragraph only as a secondary action when a law-enforcement officer with probable cause detains a driver for a suspected violation of another provision of this code. A person violating the provisions of this paragraph is guilty of a misdemeanor and, upon conviction thereof, shall for the first offense be fined twenty-five dollars; for a second offense be fined fifty dollars; and for a third or subsequent offense be fined seventy-five dollars.
(d) Level two intermediate driver's license. -- An applicant sixteen years of age or older, meeting all other requirements of the code, may be issued a level two intermediate driver's license.
(1) Eligibility. -- The division shall not issue a level two intermediate driver's license unless the applicant:
(A) Presents a completed application as prescribed in section six of this article;
(B) Has held the level one instruction permit conviction-free for the one hundred eighty days immediately preceding the date of application for a level two intermediate license;
(C) Has completed either a driver's education course approved by the State Department of Education or thirty hours of behind-the-wheel driving experience certified by a parent or legal guardian or other responsible adult over the age of twenty-one as indicated on the form prescribed by the division: Provided, That nothing in this paragraph shall be construed to require any school or any county board of education to provide any particular number of driver's education courses or to provide driver's education training to any student;
(D) Presents a current school enrollment form or otherwise shows compliance with the provisions of section eleven, article eight, chapter eighteen of this code;
(E) Passes the road skills examination as prescribed by section seven of this article; and
(F) Pays a fee of five dollars.
(2) Terms and conditions of a level two intermediate driver's license. -- A level two intermediate driver's license issued under the provisions of this section shall expire thirty days after the applicant attains the age of eighteen, or until the licensee qualifies for a level three full Class E license, whichever comes first. In addition to all other provisions of this code for which a driver's license may be restricted, suspended, revoked or canceled, the holder of a level two intermediate driver's license may only operate a motor vehicle under the following conditions:
(A) Unsupervised between the hours of five a.m. and eleven p.m.;
(B) Only under the direct supervision of a licensed driver, age twenty-one years or older, between the hours of eleven p.m. and five a.m. except when the licensee is going to or returning from:
(i) Lawful employment;
(ii) A school-sanctioned activity;
(iii) A religious event; or
(iv) An emergency situation that requires the licensee to operate a motor vehicle to prevent bodily injury or death of another;
(C) All occupants shall use safety belts in accordance with the provisions of section forty-nine, article fifteen, chapter seventeen-c of this code;
(D) Operates the vehicle with no more than three passengers under the age of nineteen, unless the passengers are family members, in addition to the driver;
(E) Without any measurable blood alcohol content in accordance with the provisions of subsection (h), section two, article five, chapter seventeen-c of this code;
(F) Maintains current school enrollment or otherwise shows compliance with the provisions of section eleven, article eight, chapter eighteen of this code;
(G) A holder of a level two intermediate driver's license who is under the age of eighteen years may not use a wireless communication device while operating a motor vehicle, unless the use of the wireless communication device is for contacting a 911 system. A law-enforcement officer may enforce the provisions of this paragraph only as a secondary action when a law-enforcement officer with probable cause detains a driver for a suspected violation of another provision of this code. A person violating the provisions of this paragraph is guilty of a misdemeanor and, upon conviction thereof, shall for the first offense be fined twenty-five dollars; for a second offense be fined fifty dollars; and for a third or subsequent offense be fined seventy-five dollars.
(H) Upon the first conviction for a moving traffic violation or a violation of paragraph (A), (B), (C), (D) or (G), subdivision (1), subsection (d) of this section of the terms and conditions of a level two intermediate driver's license, the licensee shall enroll in an approved driver improvement program unless a greater penalty is required by this section or by any other provision of this code.
At the discretion of the commissioner, completion of an approved driver improvement program may be used to negate the effect of a minor traffic violation as defined by the commissioner against the one year conviction-free driving criteria for early eligibility for a level three driver's license; and
(I) Upon the second conviction for a moving traffic violation or a violation of the terms and conditions of the level two intermediate driver's license, the licensee's privilege to operate a motor vehicle shall be revoked or suspended for the applicable statutory period or until the licensee's eighteenth birthday, whichever is longer unless a greater penalty is required by this section or any other provision of this code. Any person whose driver's license has been revoked as a level two intermediate driver, upon reaching the age of eighteen years and if otherwise eligible may reapply for an instruction permit, then a driver's license in accordance with the provisions of sections five, six and seven of this article.
(e) Level three, full Class E license. -- The level three license is valid until t~~he day designated by the commissioner of the month in which the licensee attains the age of twenty-one~~ thirty days after the date the licensee attains his or her twenty-first birthday. Unless otherwise provided in this section or any other section of this code, the holder of a level three full Class E license is subject to the same terms and conditions as the holder of a regular Class E driver's license.
A level two intermediate licensee whose privilege to operate a motor vehicle has not been suspended, revoked or otherwise canceled and who meets all other requirements of the code may be issued a level three full Class E license without further examination or road skills testing if the licensee:
(1) Has reached the age of seventeen years; and
(A) Presents a completed application as prescribed by the provisions of section six of this article;
(B) Has held the level two intermediate license conviction free for the twelve-month period immediately preceding the date of the application;
(C) Has completed any driver improvement program required under paragraph (G), subdivision (2), subsection (d) of this section; and
(D) Pays a fee of two dollars and fifty cents for each year the license is valid. An additional fee of fifty cents shall be collected to be deposited in the Combined Voter Registration and Driver's Licensing Fund established in section twelve, article two, chapter three of this code; or
(2) Reaches the age of eighteen years; and
(A) Presents a completed application as prescribed by the provisions of section six of this article; and
(B) Pays a fee of two dollars and fifty cents for each year the license is valid. An additional fee of fifty cents shall be collected to be deposited in the Combined Voter Registration and Driver's Licensing Fund established in section twelve, article two, chapter three of this code.
(f) A person violating the provisions of the terms and conditions of a level one or level two intermediate driver's license, is guilty of a misdemeanor and, upon conviction thereof, shall for the first offense be fined twenty-five dollars; for a second offense be fined fifty dollars; and for a third or subsequent offense be fined seventy-five dollars.

§17B-2-5. Qualifications, issuance and fee for instruction permits.

(a) Any person who is at least fifteen years of age may apply to the division for an instruction permit. However, any person who has not attained the age of eighteen shall comply with the provisions of section three-a of this article. The division may, in its discretion, after the applicant has successfully passed all parts of the examination other than the road skills test, issue to the applicant an instruction permit which entitles the applicant while having the permit in his or her immediate possession to drive a motor vehicle upon the public highways when accompanied by a licensed driver of at least twenty-one years of age, a driver's education or driving school instructor that is acting in an official capacity as an instructor, who is alert and unimpaired or a certified division license examiner acting in an official capacity as an examiner, who is occupying a seat beside the driver.
(1) Any instruction permit issued to a person under the age of eighteen years shall be issued in accordance with the provisions of section three-a of this article.
(2) Any permit issued to a person who has reached the age of eighteen years is valid for a period of ~~sixty~~ ninety days ~~and may be renewed within a period of sixty days without reexamination for an additional period of sixty days or a new permit issued~~. The fee for the instruction permit is ~~four~~ five dollars, one dollar of which shall be paid into the state treasury and credited to the state road fund, and the other three dollars of which shall be paid into the state treasury and credited to the general fund to be appropriated to the state police for application in the enforcement of the road law.
(b) Any person sixteen years of age or older may apply to the division for a motorcycle instruction permit. ~~On and after the first day of January, two thousand one, any~~ Any person under the age of eighteen must have first completed the requirements for a level two intermediate driver's license ~~set forth in paragraphs (B), (C) and (D), subdivision (1), subsection (j), section three-a of this article, junior driver's license or driver's license before~~ or a Class E driver's license before being eligible for a motorcycle instruction permit.
The division may, in its discretion, after the applicant has successfully passed all parts of the motorcycle examination other than the driving test, and presented documentation of compliance with the provisions of section eleven, article eight, chapter eighteen of this code, if applicable, issue to the applicant an instruction permit which entitles the applicant while having the permit in his or her immediate possession to drive a motorcycle upon the public streets or highways for a period of ninety days, during the daylight hours between sunrise and sunset only. No holder of a motorcycle instruction permit shall operate a motorcycle while carrying any passenger on the vehicle.
A motorcycle instruction permit is not renewable, but a qualified applicant may apply for a new permit. The fee for a motorcycle instruction permit is five dollars, which shall be paid into a special fund in the state treasury known as the ~~motorcycle license examination fund as established in section seven-c, article two of this chapter~~ motor vehicle fees fund.

§17B-2-6. Application for license or instruction permit; fee to accompany application.

(a) Every application for an instruction permit or for a driver's license shall be made upon a form furnished by the division. Every application shall be accompanied by the proper fee and payment of the fee shall entitle an applicant under the age of eighteen to not more than two attempts at the written test or not more than three attempts to pass the road skills test. An applicant age eighteen years or older is entitled to not more than two attempts at the written test or not more than three attempts to pass the road skills test within a period of ~~sixty~~ ninety days from the date of issuance of the instruction permit. An applicant who fails either the written test or the road skills test may not be tested twice within a period of one week.
(b) Any applicant who has not been previously licensed must hold an instruction permit for a minimum of thirty days. For the purposes of this section, the term "previously licensed" means an applicant who has obtained at least a level ~~two~~ one graduated license or junior driver's license issued under the provisions of this article or has obtained an equal or greater level of licensure if previously licensed in another state.
(c) Every said application shall state the full legal name, date of birth, sex, and residence address of the applicant and briefly describe the applicant and shall state whether the applicant has theretofore been a licensed driver and, if so, when, and by what state or country and whether any such license has ever been suspended or revoked within the five years next preceding the date of application, or whether an application has ever been refused and, if so, the date of and reason for the suspension, revocation or refusal, whether the applicant desires a notation on the driver's license indicating that the applicant is an organ donor, in accordance with article one-b of this chapter, a diabetic, deaf, or hard of hearing, or has any other handicap or disability and such other pertinent information as the commissioner may require.
§17B-2-7. Examination of applicants.
(a) Upon the presentment of the applicant's ~~birth certificate, or a~~ certified copy of the birth certificate issued by a state or other governmental entity responsible for vital records or a valid and unexpired passport issued by the United States government, as evidence that the applicant is of lawful age and verifiable identity, the Division of Motor Vehicles shall examine every applicant for a license to operate a motor vehicle in this state, except as otherwise provided in this section. The examination shall include a test of the applicant's eyesight, the applicant's ability to read and understand highway signs regulating, warning, and directing traffic, the applicant's knowledge of the traffic laws of this state, and the applicant's knowledge of the effects of alcohol upon persons and the dangers of driving a motor vehicle under the influence of alcohol. The examination shall also include an actual demonstration of ability to exercise ordinary and reasonable control in the operation of a motor vehicle, and any further physical and mental examination as the ~~division of motor vehicles~~ Division of Motor Vehicles considers necessary to determine the applicant's fitness to operate a motor vehicle safely upon the highways.
(b) The commissioner shall propose legislative rules for promulgation in accordance with the provisions of article three, chapter twenty-nine-a of this code concerning the examination of applicants for licenses and the qualifications required of applicants, and the examination of applicants by the division shall be in accordance with the rules. The rules shall provide for the viewing of educational material or films on the medical, biological, and psychological effects of alcohol upon persons, the dangers of driving a motor vehicle while under the influence of alcohol and the criminal penalties and administrative sanctions for alcohol and drug related motor vehicle violations.
(c) After successful completion of the examination required by this section, section three-a, or section seven-b of this article, and prior to the issuance of a license pursuant to the provisions of section eight of this article, every applicant for a driver's license, ~~junior driver's license,~~ graduated driver's license, or motorcycle-only license shall attend a mandatory education class on the dangers and social consequences of driving a motor vehicle while under the influence of alcohol. To the extent practicable, the commissioner shall use as lecturers at those classes persons who can relate first-hand experiences as victims or family members of victims of alcohol-related accidents or drivers who have been involved in alcohol-related accidents which caused serious bodily injury or death.
§17B-2-8. Issuance and contents of licenses; fees.
(a) The division shall, upon payment of the required fee, issue to every applicant qualifying therefor a driver's license, which shall indicate the type or general class or classes of vehicle or vehicles the licensee may operate in accordance with this chapter or chapter seventeen-e of this code, or motorcycle-only license. Each license shall contain a coded number assigned to the licensee, the full legal name, date of birth, residence address, a brief description and a color photograph of the licensee and either a facsimile of the signature of the licensee or a space upon which the signature of the licensee shall be written with pen and ink immediately upon receipt of the license. No license is valid until it has been so signed by the licensee. ~~Provided,~~ ~~that the commissioner may issue upon proper documentation, a duplicate or renewed valid without-photo license for resident applicants temporarily out of state.~~
(b) A driver's license which is valid for operation of a motorcycle shall contain a motorcycle endorsement.
(c) The division shall use such process or processes in the issuance of licenses that will, insofar as possible, prevent any alteration, counterfeiting, duplication, reproduction, forging or modification of, or the superimposition of a photograph on, the license.
~~(b)~~ (d) The fee for the issuance of a Class E driver's license is two dollars and fifty cents per year for each year the license is issued to be valid. The fee for issuance of a Class D driver's license is six dollars and twenty-five cents per year for each year the license is issued to be valid. An additional fee of fifty cents shall be collected from the applicant at the time of original issuance or each renewal and the additional fee shall be deposited in the "combined voter registration and driver's licensing fund," established pursuant to the provisions of section twelve, article two, chapter three of this code. The additional fee for adding a motorcycle endorsement to a driver's license is one dollar per year for each year the license is issued.
(e) The fee for issuance of a motorcycle-only license is two dollars and fifty cents for each year for which the motorcycle license is to be valid. The fees for the motorcycle endorsement or motorcycle-only license shall be paid into a special fund in the State Treasury known as the Motorcycle Safety Fund as established in section seven, article one-d of this chapter.
~~(c)~~ (f) ~~On or after the first day of January, two thousand one, the~~ The fee for the issuance of either the level one or level two graduated driver's license as prescribed in section three-a of this article is five dollars.
(g) The division may use an address on the face of the license other than the applicant's address of residence if:
(1) The applicant has a physical address or location that is not recognized by the post office for the purpose of receiving mail;
(2) The applicant is enrolled in a state address confidentiality program or the alcohol test and lock program;
(3) The applicant's address is entitled to be suppressed under a state or federal law or suppressed by a court order; or
(4) At the discretion of the commissioner, the applicant's address may be suppressed to provide security for classes of applicants such as law-enforcement officials, protected witnesses and members of the state and federal judicial systems.
The bill (Eng. Com. Sub. for H. B. No. 4331), as amended, was then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--31.
The nays were: Sprouse--1.
Absent: Bailey and Sharpe--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4331) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4331) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4333, Relating to requiring an insurance company to withhold a specified amount from insurance proceeds to cover costs of fire cleanup of a structure.
On second reading, coming up out of regular order, was read a second time.
The following amendment to the bill, from the Committee on Banking and Insurance, was reported by the Clerk and adopted:
On pages three and four, section nine-b, lines twenty-nine through forty-four, by striking out all of subsection (b) and inserting in lieu thereof a new subsection (b), to read as follows:
(b) The Insurance Commissioner may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a, to provide for the establishment of escrow accounts for the segregation of insurance proceeds for repairs, removal or securing structures located within a municipality whenever the loss to a structure equals or exceeds sixty per cent of the aggregate limits of liability on all policies covering the structure. The rules may provide that any escrow requirements established are applicable only with respect to structures in municipalities that have adopted an ordinance or other valid regulation authorizing the escrow procedure established by the rules.
The bill (Eng. Com. Sub. for H. B. No. 4333), as amended, was then ordered to third reading.
Eng. House Bill No. 4348, Adding language to the code for fees for tests and certificates that were already imposed.
On second reading, coming up out of regular order, was read a second time and ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
Having been engrossed, the bill (Eng. H. B. No. 4348) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4348) passed.
The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. House Bill No. 4348--A Bill to amend and reenact §22A-1-4 of the code of West Virginia, 1931, as amended, clarifying and affirming the practice of the Office of Miners' Health, Safety and Training to charge reasonable fees for providing certain tests, certificates and publications.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4402, Relating to compulsive gambling.
On second reading, coming up out of regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §29-22A-10C and §29-22A-19 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 22A. RACETRACK VIDEO LOTTERY.
§29-22A-10c. Surcharge; Capital Reinvestment Fund.
(a) For all fiscal years beginning on or after the first day of July, two thousand one, there shall be imposed a surcharge of ten percent against the excess of total net terminal income generated from a licensed racetrack for that fiscal year over total net terminal income from that licensed racetrack for the fiscal year ending the thirtieth day of June, two thousand one.
(b) A Capital Reinvestment Fund is hereby created within the lottery fund. Forty-two percent of the surcharge amount attributable to each racetrack shall be retained by the commission and deposited into a separate Capital Reinvestment Account for that licensed racetrack. For each dollar expended by a licensed racetrack for capital improvements at the racetrack, at the location of any amenity associated with the licensed racetrack's destination resort facility operations, or at adjacent facilities owned by the licensee, having a useful life of seven or more years and placed in service after the first day of April, two thousand one, the licensed racetrack shall receive one dollar in recoupment from its Capital Reinvestment Fund Account: Provided, That in the case of thoroughbred horse tracks, four cents of every dollar in recoupment shall be reserved into a separate account, which shall only be spent on capital improvements and upgrading to facilities used for the housing and care of horses, facilities located inside the perimeter of the racing surface, including the surface thereof, facilities used for housing persons responsible for the care of horses, and that any such capital improvements and upgrading shall be subject to recoupment under this section only if they have been approved by the Horsemen's Benevolent and Protective Association acting on behalf of the horsemen: Provided, That in the case of greyhound race tracks, four cents of every dollar in recoupment shall be spent on capital improvements and upgrading in the kennel area or other areas at the track. If a licensed racetrack's unrecouped capital improvements exceed its capital reinvestment fund account at the end of any fiscal year, the excess improvements may be carried forward to seven subsequent fiscal years. Provided, however, that excess improvements relating to remedial flood capital improvements may be carried forward to fifteen subsequent fiscal years.
(c) Fifty-eight percent of the surcharge amount plus any moneys remaining in a racetrack's Capital Reinvestment Fund Account at the end of any fiscal year shall be deposited in the State Excess Lottery Revenue Fund created in section eighteen-a, article twenty-two of this chapter.
§29-22A-19. Compulsive gambling treatment fund; contract requirements for compulsive gamblers treatment program.

(a) There is hereby created and established a separate special account to be known as the "Compulsive Gambling Treatment Fund". ~~Such~~ The fund shall be appropriated from the Commission's administrative expense account and shall be not less than one hundred fifty thousand dollars nor more than five hundred thousand dollars per fiscal year, as determined by the Commission, as well as other amounts designated for in this chapter to provide funds for compulsive gambling treatment programs in the state.
(b) The Department of Health and Human Resources shall administer the grants and funds issued from the "Compulsive Gambling Treatment Fund".
(c) The Department of Health and Human Resources shall develop criteria consistent with this section which a treatment program for compulsive gamblers must meet in order to become eligible for a grant from the funds made available for ~~such~~ treatment programs pursuant to this provision. The department, in conjunction with the commission, shall develop a formula for the distribution of available funds which will result in an equitable distribution among programs submitted which meet the eligibility criteria for grants as developed by the department.
~~The Commission shall report annually to the Legislature the number and amounts of grants distributed and the number of people served by such programs.~~
(d) The Department of Health and Human Resources is not subject to the purchasing requirements as set forth in the legislative rule of the Purchasing Division of the Department of Administration: Provided, That the Department of Health and Human Resources shall comply with all contract requirements set forth in this section.
(e) The Department of Health and Human Resources shall develop procedures for bidding and awarding the contract, which must include:
(1) The procedures to be followed for submitting bids and the procedures for making awards;
(2) The proposed general terms and conditions for the contract;
(3) The description of the commodities and services required for the contract, with sufficient clarity to assure that there is a comprehensive understanding of the project's scope and requirements, including, but not limited to, the following elements:
(A) Services to be provided, including education, prevention, crisis intervention, outreach, assessment, referral and treatment for problem gamblers, and protocols for emergency treatment;
(B) Requirements for the business and professional licensing of providers, parameters for media-related advertising and public service announcements;
(C) Training, licensing, monitoring, evaluation and reporting requirements;
(D) Requirements for maintaining the confidentiality of the client population; and
(E) Rights to conduct financial and performance audits;
(4) A proposed time schedule commencement and completion of the contract;
(5) A budget for the contract;
(6) Requirements or restrictions for the subletting of specific portions of the contract, if any; and
(7) Requirements for professional liability and other insurance coverage.
(f) The Department of Health and Human Resources may award the contract based on low bid, best value, sole source or other basis, or may choose to reject all bids and reissue an invitation for bids: Provided, That the Department of Health and Human Resources shall document the basis of its decisions under this subsection and shall report its decisions in the annual report required in subsection (j) of this section.
(g) The Department of Health and Human Resources shall hold a post award conference with the contractor to ensure a clear and mutual understanding of all contract terms and conditions, and the respective responsibilities of all parties. The agenda for the conference shall include, at a minimum, the introduction of all participants and identification of department and contractor key personnel, and discussion of the following items:
(1) The scope of the contract, including specifications of requirements set forth in the bid request;
(2) The contract terms and conditions, particularly any special contract provisions;
(3) The technical and reporting requirements of the contract;
(4) The contract administration procedures, including contract monitoring and progress measurement;
(5) The rights and obligations of both parties and the contractor performance evaluation procedures;
(6) An explanation that the contractor will be evaluated on its performance both during and at the conclusion of the contract and that such information may be considered in the selection of future contracts;
(7) Potential contract problem areas and possible solutions;
(8) Invoicing requirements and payment procedures, with particular attention to whether payment will be made according to outcomes achieved by the contractor; and
(9) An explanation of the limits of authority of the personnel of both the department and the contractor.
(h) The Department of Health and Human Resources shall develop a comprehensive and objective monitoring checklist which:
(1) Measures treatment outcomes;
(2) Monitors compliance with contract requirements; and
(3) Assesses contractor performance on a quarterly and annual basis.
(i) The Commission may not influence or interfere with the operation of the program or the advertising and marketing decisions of the contractor.
(j) The Department of Health and Human Resources may monitor contract performance, review compliance with the contract's terms and conditions, request and review pertinent information in support of tendered invoices and conduct other investigation so as to enable it to properly assess whether the project's objectives and the contract's terms and conditions are being met. However, the Department of Health and Human Resources may not unduly influence or interfere with the operation of the program or the advertising and marketing decisions of the contractor.
(k) Once any contract to render services under a compulsive gambling treatment program is awarded pursuant to this section, the contract shall be administrated by the Department of Health and Human Resources, and the department shall maintain all records pertaining to each request for reimbursement and disbursement for under said contract for a minimum of five (5) years.
(l) The contractor may prominently promote, display or advertise the Compulsive Gambler's Treatment Program, its purpose, its hotline or its program events in any location in which the Lottery Commission promotes, displays, advertises or conducts operations or in any other location: Provided, That the Lottery Commission's name, logo or other indicia may not appear on any advertising, marketing or promotional material of the contractor.
(m) The Department of Health and Human Resources shall report annually to the Joint Committee on Government and Finance on the amount of program funds distributed, the amount of administrative fee retained by the department and its use of the fee, the number of persons served by the program, and on each requirement set forth
in this section.
The bill (Eng. Com. Sub. for H. B. No. 4402), as amended, was then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--31.
The nays were: Boley--1.
Absent: Bailey and Sharpe--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4402) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--31.
The nays were: Boley--1.
Absent: Bailey and Sharpe--2.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4402) passed.
The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4402--A Bill to amend and reenact §29-22A-10C and §29-22A-19 of the Code of West Virginia, 1931, as amended, relating to extending the period excess improvements related to remedial flood capital improvements may be carried forward for fifteen subsequent fiscal years; treating compulsive gambling; authorizing the Department of Health and Human Resources to bid and award contracts for treatment programs; requiring development of procedures; establishing contract requirements; requiring post award conferences; providing for performance monitoring; prohibiting interference with operation of program; prohibiting use of Lottery Commission logo on advertising media; and requiring annual report.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4404, Discount Medical Plan Organizations and Discount Prescription Drug Plan Organizations Act.
On second reading, coming up out of regular order, was read a second time.
The following amendment to the bill, from the Committee on Health and Human Resources, was reported by the Clerk and adopted:
On page thirteen, section eight, lines twenty-eight through thirty-one, by striking out all of subsection (c) and inserting in lieu thereof a new subsection (c), to read as follows:
(c) When a marketer or discount medical plan organization sells a discount medical plan in conjunction with any other products, the marketer or discount medical plan organization shall:
(1) Provide the charges for each discount medical plan in writing to the member; or
(2) Reimburse the member for all periodic charges for the discount medical plan and all periodic charges for any other product if the member cancels his or her membership in accordance with subdivision (1), subsection (b) of this section.
The bill (Eng. Com. Sub. for H. B. No. 4404), as amended, was then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4404) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4404) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4438, Relating to air pollution control.
On second reading, coming up out of regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 5. AIR POLLUTION CONTROL.
§22-5-1. Declaration of policy and purpose.
It is hereby declared to be the public policy of this state and the purpose of this article to achieve and maintain such levels of air quality as will protect human health and safety, and to the greatest degree practicable, prevent injury to plant and animal life and property, foster the comfort and convenience of the people, promote the economic and social development of this state and facilitate the enjoyment of the natural attractions of this state.
To these ends it is the purpose of this article to provide for a coordinated statewide program of air pollution prevention, abatement and control; to facilitate cooperation across jurisdictional lines in dealing with problems of air pollution not confined within single jurisdictions; to assure the economic competitiveness of the state by providing for the timely processing of permit applications and other authorizations under this article; and to provide a framework within which all values may be balanced in the public interest.
Further, it is the public policy of this state to fulfill its primary responsibility for assuring air quality pursuant to the "Federal Clean Air Act," as amended.
§22-5-11. Construction, modification or relocation permits required for stationary sources of air pollutants.

(a) No Unless otherwise specifically provided in this article, no person shall construct, modify or relocate any stationary source of air pollutants without first obtaining a construction, modification or relocation permit as provided in this ~~section~~ article.
(b) The ~~director~~ secretary shall by rule specify the class or categories of stationary sources to which this section applies. Application for permits shall be made upon such form, in such manner, and within such time as the rule prescribes and shall include such information, as in the judgment of the ~~director~~ secretary, will enable him or her to determine whether such source will be so designed as to operate in conformance with the provisions of this article or any rules of the ~~director~~ secretary.
The director shall, within a reasonable time not to exceed twelve months for major sources, as defined by the director and six months for all other sources after the receipt of a complete application, issue such permit unless he or she determines that the proposed construction, modification or relocation will not be in accordance with this article or rules promulgated thereunder, in which case the director shall issue an order for the prevention of such construction, modification or relocation. For the purposes of this section, a modification is deemed to be any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant discharged by such source above a de minimis level set by the director.
(c) Unless otherwise specifically provided in this article, the secretary shall issue a permit for a major stationary source within a reasonable time not to exceed three hundred sixty-five calendar days, after the secretary determines that the application is complete.
(d) Unless otherwise specifically provided in this article, the secretary shall issue a permit for all other sources including modifications of existing major stationary sources which are not major modifications within a reasonable time not to exceed ninety calendar days, after the date the secretary determines the application is complete. The Secretary may extend this time by thirty calendar days to allow for public comment.
(e) A permit application will be denied if the secretary determines that the proposed construction, modification or relocation will not be in accordance with this article or rules promulgated thereunder.
(f) For purposes of this section, a modification is any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant discharged by a source above the de minimis level set by the secretary.
(g) With respect to the construction of new nonmajor stationary sources, or modifications of nonmajor stationary sources, or modifications which are not major modifications to existing major stationary sources, or relocations of nonmajor stationary sources, the following requirements apply:
(1) The secretary shall issue an administrative update to a permit issued under this section with respect to any of these sources, unless he or she determines that the proposed administrative update will not be in accordance with this article or rules promulgated hereunder, in which case the secretary shall issue an order denying the administrative update. Any administrative update shall be issued by the secretary within a reasonable time not to exceed sixty calendar days after receipt of a complete application. Administrative updates are minor revisions of existing permits as further described and authorized by rule.
(2) The secretary shall, within a reasonable time not to exceed forty-five calendar days after the date the secretary determines that an application is complete, issue a registration under a general permit applicable to any of these sources, unless he or she determines that the proposed construction, modification or relocation will not be in accordance with this article or rules promulgated hereunder. General permits are permits authorizing the construction, modification or relocation of a category of sources by the same owner or operator or involving the same or similar processes or pollutants upon the terms and conditions specified in the general permit for those types of sources.
(3) The secretary shall, within a reasonable time not to exceed forty-five calendar days after receipt of a complete application, issue a temporary permit or a relocation permit, unless he or she determines that the proposed construction, modification or relocation will not be in accordance with this article or rules promulgated hereunder. Temporary permits are permits authorizing the owner or operator to make limited changes for limited periods of time as further described and authorized by rule.
(e) The secretary shall determine whether an application filed under this section is complete within thirty calendar days after receipt of that application at which time the secretary shall notify the applicant in writing as to whether the application is complete or specify any additional information required for the application to be complete.
(f) The secretary, shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty nine-a of this code, to implement the provisions of this section by the first day of August, two thousand eight.
§22-5-11a. Activities authorized in advance of permit issuance.
(a) With respect to the modifications of nonmajor stationary sources, or modifications which are not major modifications to existing major stationary sources, the following activities are authorized in advance of permit issuance. Any authorized activities undertaken by or on behalf of the permit applicant prior to the issuance of a final permitting action by the secretary are undertaken at the permit applicant's own risk and with the knowledge that the application for a permit or permit modification may be denied:
(1) Receiving or storing on-site or off-site any equipment or supplies which make up in part or in whole an emission unit or any support equipment, facilities, building or structure.
(2) A person who holds an active West Virginia air quality permit issued under this article at an existing source, and who has applied to the secretary for permission to alter, expand or modify that source or to allow a new emissions unit at that source, may begin the construction of any such alteration, expansion, modification or new emission unit in advance of permit issuance in accordance with this section. The person may not operate any altered, expanded, modified or new emission unit without first obtaining an air quality permit as required by rules promulgated by the secretary.
(3) The following sources are ineligible for submission of an application for permission to commence construction in advance of permit issuance:
(A) Sources subject to the "Federal Clean Air Act" subsections 112(g) or 112(j).
(B) Sources seeking federally enforceable permit conditions in order to avoid otherwise applicable standards;
(C) Sources requiring a specific case-by-case emission limitation or standard under 45CSR21 or 45CSR27.
(4) (A) To qualify for the authorization to construct in advance of permit issuance as provided in this section, the permittee shall submit to the secretary an application for permission to commence construction in advance of permit issuance.
(B) Such application for permission to commence construction shall include all of the following:
(1) The name and location of the source and the name and address of the permittee;
(2) The permit number of each active permit issued under this article for such source;
(3) The nature of the sources and equipment associated with such alteration, expansion, modification or new emission unit;
(4) An estimate of the maximum hourly and annual emissions of regulated air pollutants increased as a result of such alteration, expansion, modification or new emission unit;
(5) The air pollution control devices or methods that are to be employed in connection with the alteration, expansion, modification or new emission unit;
(6) A listing of the applicable state and federal air quality regulatory requirements for alteration, expansion, modification or new emission unit, and sufficient information which, in the judgement of the secretary, will demonstrate compliance with any applicable state and federal air quality regulatory requirements;
(7) The anticipated construction or building schedule for alteration, expansion, modification or new emission unit;
(8) A certification signed by the responsible official that the source, equipment and devices that are subject to a request for construction authorization will not be operated until the permittee has obtained a permit under rules promulgated by the secretary;
(9) A certification by the responsible official that any construction undertaken prior to the issuance of a final permit under rules of the secretary is undertaken at the permittee's own risk and with the knowledge that the permittee may be denied a permit or permit modification without regard to the permittee's financial investment or addition to or modification of the source; (10) A certification signed by the responsible official that all of the information contained in the application is complete and accurate to the best of the responsible official's knowledge and ability; and
(11) Upon submission of the application for permission to construct, the applicant shall give notice by publishing a Class I legal advertisement of the applicant's intent to alter or expand the physical arrangement or operation of an existing stationary source and the opportunity to provide written comment to the secretary within thirty calendar days of the publication. Public notice shall be in a newspaper having general circulation in the county or counties where the facility is located. The notice shall contain the information required by rules promulgated by the secretary. Within fifteen days of completion of the public comment period, the secretary shall consider and respond to all written comments. If the secretary finds that concerns raised by the public comment period give rise to issues or concerns that would cause a construction or operational permit not to be issued, the secretary may issue a revocation or stay of the authorization to construct until those issues or concerns are resolved.
(c) The secretary shall determine whether an application for permission to commence construction in advance of permit issuance is complete within fifteen calendar days after receipt of the application at which time the secretary shall notify the applicant in writing as to whether the application is complete or specify any additional information required for the application to be complete.
(d) Within fifteen calendar days after the secretary has made a determination that an application for permission to commence construction in advance of permit issuance is complete, the secretary shall notify the applicant in writing of his or her determination as to whether each of the following conditions has or has not been satisfied:
(1) The applicant is and has been for a period of at least three years in substantial compliance with all other active permits and applicable state and federal air quality regulatory requirements under this article;
(2) The applicant has demonstrated that the alteration, expansion, modification or new emission unit will be in compliance with all applicable state and federal air quality regulatory requirements;
(3) The alteration, expansion, modification or new emission unit will not interfere with attainment or maintenance of an applicable ambient air quality standard, cause or contribute to a violation of an applicable air quality increment or be inconsistent with the intent and purpose of this article;
(4) The facility will be altered or expanded so that it will be used for either the same or a similar use as the use already permitted;
(5) The alteration or expansion will not result in a disproportionate increase in size of the facility already permitted; and
(6) The alteration or expansion will result in the same or substantially similar emissions as the facility already permitted.
If the secretary finds that all of the conditions have been satisfied, the notice issued by the secretary shall state that construction of the alteration, expansion, modification or new emission unit in advance of permit issuance may begin immediately. If the secretary finds that one or more of the conditions has not been met, the notice shall state that the requested construction, alteration, expansion, modification or new emission unit may not begin prior to issuance of a new or modified permit.
(e) If at any time during the construction of such alteration, expansion, modification or new emission unit, the secretary determines that the source is not likely to qualify for a permit or permit modification under applicable rules, the secretary may order that construction cease until the secretary makes a decision on the application for a permit or permit modification. If the secretary orders that construction cease, then construction of the alteration, expansion, modification or new emission unit may resume only if the secretary either makes a subsequent written determination that the circumstances that resulted in such order have been adequately addressed or if the secretary issues a permit or permit modification under the rules that authorize construction to resume.
(f) The secretary shall evaluate an application for a permit or permit modification under the rules and make a decision on the same basis as if the construction of the alteration, expansion, modification or new emission unit in advance of permit issuance had not been authorized pursuant to this section. No evidence regarding any contract entered into, financial investment made, construction undertaken, or economic loss incurred by any person or permittee who proceeds under this section without first obtaining a permit under this article is admissible in any contested case or judicial proceeding involving any permit required under the rules. No evidence as to any determination or order by the secretary pursuant to this section shall be admissible in any contested case or judicial proceeding related to any permit required under this article.
(g) Any permittee who proceeds under this section shall be precluded from bringing any action, suit or proceeding against the state, the officials, agents, and employees of the state or the secretary for any loss resulting from any contract entered into, financial investment made, construction undertaken, or economic loss incurred by the permittee in reliance upon the provisions of this section.
(h) This section does not relieve any person of the obligation to comply with any other requirement of state law, including any requirement to obtain any other permit or approval prior to undertaking any activity associated with preparation of the site or the alteration or expansion of the physical arrangement or method of operation of a source at a facility for which a permit is required under the rules.
(i) This section does not relieve any person from any preconstruction or construction prohibition imposed by any federal requirement, federal delegation, federally approved requirement in any state implementation plan, or federally approved requirement under the Title V permitting program, as determined solely by the secretary. This section does not apply to any construction, alteration, or expansion that is subject to requirements for prevention of significant deterioration or federal nonattainment new source review, as determined solely by the secretary. This section does not apply if it is inconsistent with any federal requirement, federal delegation, federally approved requirement in any state implementation plan, or federally approved requirement under the Title V permitting program, as determined solely by the secretary.
(j) A permittee who submits an application to commence construction in advance of permit issuance under this section shall pay to the department a fee of two hundred dollars for each application submitted to cover a portion of the administrative costs of implementing this section.
(k) The secretary, in accordance with chapter twenty-nine-a of this code, shall propose legislative rule that may be necessary to implement the provisions of this section by the first day of August, two thousand eight.
(l) The Secretary is directed to report back to the Joint Committee on Government and Finance by the first day of January, two thousand ten on the impact of the implementation of the expedited permits authorized pursuant to this section. The report shall include, but not be limited to, assessments regarding the number and types of facilities utilizing this section, whether the agency has found this expedited process has assisted these facilities to implement construction and make revisions to their operations efficiently, without adverse impacts on the agency, the permitting process, or state-wide air quality.

§22-5-14. Administrative review of permit actions.

Any person whose interest may be affected, including, but not necessarily limited to, the applicant and any person who participated in the public comment process, by a permit issued, modified or denied by the Secretary, or construction authorization pursuant to section eleven-a of this article, may appeal such action of the Secretary to the air quality board pursuant to article one, chapter twenty-two-b of this code.
The bill (Eng. Com. Sub. for H. B. No. 4438), as amended, was then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, Yoder and Tomblin (Mr. President)--30.
The nays were: Hunter and White--2.
Absent: Bailey and Sharpe--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4438) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, Yoder and Tomblin (Mr. President)--30.
The nays were: Hunter and White--2.
Absent: Bailey and Sharpe--2.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4438) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, Yoder and Tomblin (Mr. President)--30.
The nays were: Hunter and White--2.
Absent: Bailey and Sharpe--2.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4438) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. House Bill No. 4465, Relating to fees charged by the Secretary of State.
On second reading, coming up out of regular order, was read a second time.
The following amendment to the bill, from the Committee on Finance, was reported by the Clerk and adopted:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 1. FEES AND ALLOWANCES.
§59-1-2. Fees to be charged by Secretary of State.
(a) Except as may be otherwise provided in this code, the Secretary of State shall charge for services rendered in his or her office the following fees to be paid by the person to whom the service is rendered at the time it is done:
(1) For filing, recording, indexing, preserving a record of and issuing a certificate relating to the formation, amendment, change of name, registration of trade name, merger, consolidation, conversion, renewal, dissolution, termination, cancellation, withdrawal revocation and reinstatement of business entities organized within the state, as follows:
(A) Articles of incorporation of for-profit
corporation$50.00
(B) Articles of incorporation of nonprofit
corporation25.00
(C) Articles of organization of limited liability
company100.00

(D) Agreement of a general partnership50.00

(E) Certificate of a limited partnership100.00
(F) Agreement of a voluntary association50.00
(G) Articles of organization of a business trust50.00
(H) Amendment or correction of articles of incorporation, including change of name or increase of capital stock, in addition to any applicable license tax25.00
(I) Amendment or correction, including change of name, of articles of organization of business trust, limited liability partnership, limited liability company or professional limited liability company or of certificate of limited partnership or agreement of voluntary association25.00
(J) Amendment and restatement of articles of incorporation, certificate of limited partnership, agreement of voluntary association or articles of organization of limited liability partnership, limited liability company or professional limited liability company or business trust25.00
(K) Registration of trade name, otherwise designated as a true name, fictitious name or D.B.A. (doing business as) name for any domestic business entity as permitted by law25.00
(L) Articles of merger of two corporations, limited partnerships, limited liability partnerships, limited liability companies or professional limited liability companies, voluntary associations or business trusts.25.00
(M) Plus for each additional party to the merger in excess of two. . . .15.00
(N) Statement of conversion, when permitted, from one business entity into another business entity, in addition to the cost of filing the appropriate documents to organize the surviving entity 25.00
(O) Articles of dissolution of a corporation, voluntary association or business trust, or statement of dissolution of a general partnership25.00
(P) Revocation of voluntary dissolution of a corporation, voluntary association or business trust15.00
(Q) Articles of termination of a limited liability company, cancellation of a limited partnership or statement of withdrawal of limited liability partnership25.00
(R) Reinstatement of a limited liability company or professional limited liability company after administrative dissolution25.00
(2) For filing, recording, indexing, preserving a record of and issuing a certificate relating to the registration, amendment, change of name, merger, consolidation, conversion, renewal, withdrawal or termination within this state of business entities organized in other states or countries, as follows:
(A) Certificate of authority of for-profit corporation
$100.00
(B) Certificate of authority of nonprofit corporation
50.00
(C) Certificate of authority of foreign limited liability companies150.00
(D) Certificate of exemption from certificate of authority
25.00
(E) Registration of a general partnership50.00
(F) Registration of a limited partnership150.00
(G) Registration of a limited liability partnership for two-year term500.00
(H) Registration of a voluntary association50.00
(I) Registration of a trust or business trust50.00
(J) Amendment or correction of certificate of authority of a foreign corporation, including change of name or increase of capital stock, in addition to any applicable license tax25.00
(K) Amendment or correction of certificate of limited partnership, limited liability partnership, limited liability company or professional limited liability company, voluntary association or business trust25.00
(L) Registration of trade name, otherwise designated as a true name, fictitious name or D.B.A. (doing business as) name for any foreign business entity as permitted by law25.00
(M) Amendment and restatement of certificate of authority or of registration of a corporation, limited partnership, limited liability partnership, limited liability company or professional limited liability company, voluntary association or business trust 25.00
(N) Articles of merger of two corporations, limited partnerships, limited liability partnerships, limited liability companies or professional limited liability companies, voluntary associations or business trusts25.00
(O) Plus for each additional party to the merger in excess
of two5.00
(P) Statement of conversion, when permitted, from one business entity into another business entity, in addition to the cost of filing the appropriate articles or certificate to organize the surviving entity 25.00
(Q) Certificate of withdrawal or cancellation of a corporation, limited partnership, limited liability partnership, limited liability company, voluntary association or business trust 25.00
Notwithstanding any other provision of this section to the contrary, after the thirtieth day of June, two thousand eight, the fees described in this subdivision that are collected for the issuance of a certificate relating to the initial registration of a corporation, limited partnership, domestic limited liability company or foreign limited liability company shall be deposited in the general administrative fees account established by this section.
(3) For receiving, filing and recording a change of the principal or designated office, change of the agent of process and/or change of officers, directors, partners, members or managers, as the case may be, of a corporation, limited partnership, limited liability partnership, limited liability company or other business entity as provided by law$15.00
(4) For receiving, filing and preserving a reservation of a name for each one hundred twenty days or for any other period in excess of seven days prescribed by law for a corporation, limited partnership, limited liability partnership or limited liability company$15.00
(5) For issuing a certificate relating to a corporation or other business entity, as follows:
(A) Certificate of good standing of a domestic or foreign corporation$10.00
(B) Certificate of existence of a domestic limited liability company, and certificate of authorization foreign limited liability company10.00
(C) Certificate of existence of any business entity, trademark or service mark registered with the Secretary of State 10.00
(D) Certified copy of corporate charter or comparable organizing documents for other business entities15.00
(E) Plus, for each additional amendment, restatement or other additional document5.00
(F) Certificate of registration of the name of a foreign corporation, limited liability company, limited partnership or limited liability partnership25.00
(G) And for the annual renewal of the name registration
10.00
(H) Any other certificate not specified in this subdivision
10.00
(6) For issuing a certificate other than those relating to business entities, as provided in this subsection, as follows:
(A) Certificate or apostille relating to the authority of certain public officers, including the membership of boards and commissions$10.00
(B) Plus, for each additional certificate pertaining to the same transaction . . . . . . . . . . . . . . . . . . . . . . 5.00
(C) Any other certificate not specified in this
subdivision10.00
(D) For acceptance, indexing and recordation of service of process any corporation, limited partnership, limited liability partnership, limited liability company, voluntary association, business trust, insurance company, person or other entity as permitted by law15.00
(E) For shipping and handling expenses for execution of service of process by certified mail upon any defendant within the United States, which fee is to be deposited to the special revenue account established in this section for the operation of the office of the Secretary of State.5.00
(F) For shipping and handling expenses for execution of service of process upon any defendant outside the United States by registered mail, which fee is to be deposited to the special revenue account established in this section for the operation of the office of the Secretary of State.15.00
(7) For a search of records of the office conducted by employees of or at the expense of the Secretary of State upon request, as follows:
(A) For any search of archival records maintained at sites other than the office of the Secretary of State
no less than $10.00
(B) For searches of archival records maintained at sites other than the office of the Secretary of State which require more than one hour, for each hour or fraction of an hour consumed in making such search10.00
(C) For any search of records maintained on site for the purpose of obtaining copies of documents or printouts of data

5.00

(D) For any search of records maintained in electronic format which requires special programming to be performed by the state information services agency or other vendor
any actual cost, but not less than 25.00
(E) The cost of the search is in addition to the cost of any copies or printouts prepared or any certificate issued pursuant to or based on the search.
(F) For recording any paper for which no specific fee is prescribed5.00
(8) For producing and providing photocopies or printouts of electronic data of specific records upon request, as follows:
(A) For a copy of any paper or printout of electronic data, if one sheet$1.00
(B) For each sheet after the first .50
(C) For sending the copies or lists by fax
transmission5.00
(D) For producing and providing photocopies of lists, reports, guidelines and other documents produced in multiple copies for general public use, a publication price to be established by the Secretary of State at a rate approximating 2.00 plus .10 per page and rounded to the nearest dollar.
(E) For electronic copies of records obtained in data format on disk, the cost of the record in the least expensive available printed format, plus, for each required disk, which shall be provided by the Secretary of State5.00
(b) The Secretary of State may propose legislative rules for promulgation for charges for on-line electronic access to database information or other information maintained by the Secretary of State.
(c) For any other work or service not enumerated in this subsection, the fee prescribed elsewhere in this code or a rule promulgated under the authority of this code.
(d) The records maintained by the Secretary of State are prepared and indexed at the expense of the state and those records shall not be obtained for commercial resale without the written agreement of the state to a contract including reimbursement to the state for each instance of resale.
(e) The Secretary of State may provide printed or electronic information free of charge as he or she considers necessary and efficient for the purpose of informing the general public or the news media.
(f) There is hereby continued in the state treasury a special revenue account to be known as the "service fees and collections" account. Expenditures from the account shall be used for the operation of the office of the Secretary of State and are not authorized from collections, but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon the fulfillment of the provisions set forth in article two, chapter five-a of this code. Notwithstanding any other provision of this code to the contrary, except as provided in subsection (h) of this section and section two-a of this article, one half of all the fees and service charges established in the following sections and for the following purposes shall be deposited by the Secretary of State or other collecting agency to that special revenue account and used for the operation of the office of the Secretary of State:
(1) The annual attorney-in-fact fee for corporations and limited partnerships established in section five, article twelve-c, chapter eleven of this code;
(2) The fees received for the sale of the state register, code of state rules and other copies established by rule and authorized by section seven, article two, chapter twenty-nine-a of this code;
(3) The registration fees, late fees and legal settlements charged for registration and enforcement of the charitable organizations and professional solicitations established in sections five, nine and fifteen-b, article nineteen, chapter twenty-nine of this code;
(4) The annual attorney-in-fact fee for limited liability companies as designated in section one hundred eight, article one, chapter thirty-one-b of this code and established in section two hundred eleven, article two of said chapter: Provided, That after the thirtieth day of June, two thousand eight, the annual report fees designated in section one hundred eight, article one, chapter thirty-one-b of this code shall upon collection be deposited in the general administrative fees account described in subsection (h) of this section;
(5) The filing fees and search and copying fees for uniform commercial code transactions established by section five hundred twenty-five, article nine, chapter forty-six of this code;
(6) The annual attorney-in-fact fee for licensed insurers established in section twelve, article four, chapter thirty-three of this code;
(7) The fees for the application and record maintenance of all notaries public established by section one hundred seven, article one, chapter twenty-nine-c of this code;
(8) The fees for the application and record maintenance of commissioners for West Virginia as established by section twelve, article four, chapter twenty-nine of this code;
(9) The fees for registering credit service organizations as established by section five, article six-c, chapter forty-six-a of this code;
(10) The fees for registering and renewing a West Virginia limited liability partnership as established by section one, article ten, chapter forty-seven-b of this code;
(11) The filing fees for the registration and renewal of trademarks and service marks established in section seventeen, article two, chapter forty-seven of this code;
(12) All fees for services, the sale of photocopies and data maintained at the expense of the Secretary of State as provided in this section; and
(13) All registration, license and other fees collected by the Secretary of State not specified in this section.
(g) Any balance in the service fees and collections account established by this section which exceeds five hundred thousand dollars as of the thirtieth day of June, two thousand three, and each year thereafter, shall be expired to the state fund, general revenue fund.
(h)(1) Effective the first day of July, two thousand eight, there is hereby created in the state treasury a special revenue account to be known as the general administrative fees account. Expenditures from the account shall be used for the operation of the office of the Secretary of State and are not authorized from collections, but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon the fulfillment of the provisions set forth in article two, chapter eleven-b of this code: Provided, That for the fiscal year ending the thirtieth day of June, two thousand nine, expenditures are authorized from collections rather than pursuant to an appropriation by the Legislature. Any balance in the account at the end of each fiscal year shall not revert to the general revenue fund but shall remain in the fund and be expended as provided by this subsection.
(2) After the thirtieth day of June, two thousand eight, all the fees and service charges established in section two-a of this article for the following purposes shall be collected and deposited by the Secretary of State or other collecting agency in the general administrative fees account and used for the operation of the office of the Secretary of State:
(A) The annual report fees paid to the Secretary of State by corporations, limited partnerships, domestic limited liability companies and foreign limited liability companies;
(B) The fees for the issuance of a certificate relating to the initial registration of a corporation, limited partnership, domestic limited liability company or foreign limited liability company described in subdivision (2), subsection (a) of this section; and
(C) The fees for the purchase of date and updates related to the State's Business Organizations Database described in section two-a of this article.
(i) There is continued in the office of the Secretary of State a non-interest bearing, escrow account to be known as the "prepaid fees and services account". This account shall be for the purpose of allowing customers of the Secretary of State to prepay for services, with payment to be held in escrow until services are rendered. Payments deposited in the account shall remain in the account until services are rendered by the Secretary of State and at that time the fees will be reallocated to the appropriate general or special revenue accounts. There shall be no fee charged by the secretary of state to the customer for the use of this account and the customer may request the return of any moneys maintained in the account at any time without penalty. The assets of the prepaid fees and services account do not constitute public funds of the state and are available solely for carrying out the purposes of this section.
The bill (Eng. H. B. No. 4465), as amended, was then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
Having been engrossed, the bill (Eng. H. B. No. 4465) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4465) passed.
The following amendment to the title of the bill, from the Committee on Finance, was reported by the Clerk and adopted:
Eng. House Bill No. 4465--A Bill to amend and reenact §59-1-2 of the Code of West Virginia, 1931, as amended, relating to creating a special revenue account; redirecting certain fees into the account; providing purposes for the expenditure of certain fee collections; continuing the prepaid fees and services account in the Secretary of State's office; assets in account not public funds; and purpose of account.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. House Bill No. 4513, Relating to the reimbursement of costs for newborn screenings.
On second reading, coming up out of regular order, was read a second time.
The following amendment to the bill, from the Committee on Finance, was reported by the Clerk and adopted:
On page two, section three, lines seven and eight, by striking out the words "No later than the first day of July, two thousand seven, the" and inserting in lieu thereof the word "The".
The bill (Eng. H. B. No. 4513), as amended, was then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
Having been engrossed, the bill (Eng. H. B. No. 4513) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4513) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4515, Relating to reports by health care providers of persons incompetent to drive an automobile.
On second reading, coming up out of regular order, was read a second time.
The following amendment to the bill, from the Committee on Health and Human Resources, was reported by the Clerk and adopted:
On page three, section thirteen, lines sixteen through twenty- four, by striking out all of subsection (b) and inserting in lieu thereof a new subsection (b), to read as follows:
(b) Reports, recommendations or opinions, findings or advice received or made by the division for the purpose of determining whether a person is qualified to be licensed to drive are for the confidential use of the division and exempt from provisions of article one, chapter twenty-nine-B of this code and may only be admitted in proceedings to either suspend, revoke or impose limitations on the use of a driver's license pursuant to section six, subsection (a)(5),article three, chapter seventeen-B of this code or section seven, article three, chapter seventeen-B of this code, or to reinstate the driver's license.
The bill (Eng. Com. Sub. for H. B. No. 4515), as amended, was then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4515) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4515) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4527, Allowing county commissions to regulate subdivisions and land development without adopting a plan.
On second reading, coming up out of regular order, was read a second time.
The following amendment to the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:
On page two, section one, lines nine and ten, by striking out all of subdivision (2) and inserting in lieu thereof a new subdivision (2), to read as follows:
(2) Establishing a planning commission, enacting a subdivision and land development ordinance, and adopting a comprehensive plan for the area included in the subdivision and land development ordinance within three years of the enactment of the subdivision and land development ordinance.
The bill (Eng. Com. Sub. for H. B. No. 4527), as amended, was then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4527) was then read a third time and put upon its passage.
Pending extended discussion,
The question being "Shall Engrossed Committee Substitute for House Bill No. 4527 pass?"
On the passage of the bill, the yeas were: Bowman, Chafin, Edgell, Fanning, Foster, Green, Helmick, Hunter, Jenkins, Kessler, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Stollings, Unger, Wells, Yoder and Tomblin (Mr. President)--21.
The nays were: Barnes, Boley, Caruth, Deem, Facemyer, Guills, Hall, Love, Sprouse, Sypolt and White--11.
Absent: Bailey and Sharpe--2.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4527) passed.
The following amendment to the title of the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4527--A Bill to amend and reenact §8A-4-1 and §8A-4-2 of the Code of West Virginia, 1931, as amended, all relating to subdivision and land development ordinances; and providing an option to counties and municipalities to regulate subdivisions and land development.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. House Bill No. 4567, Attracting private investment for the financing, construction and operation of additional lodging units at Stonewall Jackson Lake State Park.
On second reading, coming up out of regular order, was read a second time.
Under rule number forty-three of the Rules of the Senate, Senator McCabe was excused from voting on any matter pertaining to the bill.
The following amendment to the bill, from the Committee on Natural Resources, was reported by the Clerk and adopted:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 5. PARKS AND RECREATION.

§20-5-16. Authority to enter into contracts with third parties to construct recreational facilities and cabins; public comment.

(a) Notwithstanding any other provision of this code to the contrary, in addition to all other powers and authority vested in the director, he or she is hereby authorized and empowered to:
(1) Enter into contracts with third parties for the financing, construction and operation of recreational, lodging and ancillary facilities at Chief Logan State Park, Beech Fork State Park, Tomlinson Run State Park, Stonewall Jackson Lake State Park, Lost River State Park and Canaan Valley Resort State Park. The contracts may allow and recognize both direct and subsidiary investment arrangements. The term of the contracts may not exceed a period of twenty-five years, at which time the full title to the recreational facilities shall vest in the state, except as otherwise provided in this section;
(2) Enter into contracts with third parties for the construction, but not the operation, of cabins at any state park or forest. Upon completion of the construction of the cabins, full title to the cabins shall immediately vest in the state and the cabins shall be operated by the parks and recreation section;
(3) Authorize the construction of at least five cabins by any single third party in state parks and state forests which do not offer ~~such~~ the facilities on the effective date of this subsection; and
(4) Propose emergency and legislative rules, in accordance with the provisions of article three, chapter twenty-nine-a of this code, that set the conditions upon which the director may enter into a contract with a single third party proposing to construct cabins.
(b) All contracts shall be presented to the Joint Committee on Government and Finance for review and comment prior to execution.
(c) A contract may provide for renewal for the purpose of permitting continued operation of the facilities at the option of the director for a term or terms not to exceed ten years.
(d) Except as otherwise authorized by this section, no extension or renewal beyond the original twenty-five year term may be executed by the director absent the approval of the Joint Committee on Government and Finance.
(e) Stonewall Jackson Lake State Park. --
(1) With respect to the financing, construction and operation of lodging at Stonewall Jackson Lake State Park, in addition to the lodging in existence as of the first day of July, two thousand eight, contracts entered into pursuant to this section may grant, convey or provide for commercially reasonable lodging usage and related rights and privileges all on terms and conditions as the director may deem appropriate, desirable or necessary to attract private investment for the construction of additional lodging units.
(2) No contracts may be entered into prior to the preparation of lodging unit development plans and standard lodging unit contract documents in a form and at a level of detail acceptable to the United States Army Corps of Engineers and the director, and subsequent to the presentation of the lodging unit development plans and standard lodging unit contract documents to the Joint Committee on Government and Finance for review and comment.
(3) At a minimum, the lodging unit development plans and standard lodging unit contracts shall comply with the following requirements:
(A) That no more than one hundred additional lodging units may be constructed, in addition to the lodging in existence as of the first day of July, two thousand eight;
(B) That lodging unit contracts, with respect to any additional lodging units that may be financed, constructed or operated pursuant to the provision of this section, shall generally conform to the contracts entered into by federal agencies or the National Park Service with private parties regarding privately financed property that is constructed, developed or operated on public lands administered by federal agencies or the National Park Service, subject to modification and adaptation by the director as the director deems appropriate, suitable and relevant to any lodging units to be constructed at Stonewall Jackson Lake State Park.
(C) That a party granted rights and privileges under lodging unit contracts awarded under the provisions of this subsection shall have the right to renew his, her or its lodging unit contract for successive terms not to extend beyond the termination date of the state's lease with the United States Army Corps of Engineers; or, in the event that the state's lease with the United States Army Corps of Engineers is extended beyond the termination date of the lease as of the first day of July, two thousand seven, not to exceed five ten-year extensions or renewals beyond the termination date of the lease between the state and the United States Army Corps of Engineers in effect as of the first day of July, two thousand seven: Provided, That the party extended the renewal rights is in compliance with all material rights, duties and obligations arising under his, her or its contract and all relevant and applicable provisions of federal, state and local laws, rules, regulations, contracts or agreements at the time of renewal: Provided, however, That if and in the event the director makes an affirmative determination that further renewals beyond the time periods set forth in this subsection are in the best interest of the state and Stonewall Jackson Lake State Park, giving due consideration to financial, operational and other considerations deemed relevant and material by the director, that the director may authorize further renewals;
(D) That all rights and privileges arising under a lodging unit contract shall be transferred to the state or the state's designee upon the expiration or termination of the contract, upon the terms and conditions as each contract may provide or as may otherwise be agreed upon between the parties;
(E) That the state is not, and cannot be, obligated for any costs, expenses, fees or other charges associated with the development of the additional lodging units under this subsection or the operation and maintenance of the additional lodging units over time, including, but not limited to, costs associated with infrastructure improvements associated with development or operation of the additional lodging units. In his or her discretion, the director may engage professionals to assist the state in connection with its review and oversight of development of the additional lodging units;
(F) That at any time following the initial term and first renewal period of any lodging unit contract entered into with a private party with respect to an additional lodging unit that is constructed under this section, the state shall have the right and option, in its sole discretion, to purchase a lodging unit or lodging units in accordance with the provisions of this subsection and any and all contracts that may be entered into from time to time under this section;
(G) That at its sole option and discretion, the state may elect to purchase a lodging unit from a private party. In that event, the private party shall be paid the fair value of the private party's residual rights and privileges under the lodging unit contract, the residual rights and privileges to be valued generally in accordance with the valuation standards set forth in the National Park Service's standard contract provisions, or other relevant federal agency standards applicable to similar or like contract rights and provisions as may be in existence at the time of transfer, all as the same may be deemed relevant and appropriate by the director, and all in the exercise of the director's reasonable discretion. Nothing in this section is intended or shall be construed to impose an obligation on the state to purchase, purchase, buy, buy out or otherwise acquire or pay for any lodging unit under this section, or to limit the right and ability of a private party to donate or contribute his, her or its interest in and to any lodging unit constructed under this section to the state or any charitable foundation that may be established and operating from time to time to support the continued operation and development of Stonewall Jackson Lake State Park;
(H) That the state shall have no obligation whatsoever to purchase, buy, buy out or otherwise acquire or pay for any lodging unit that is developed or constructed under this section; and
(I) The director shall have the right to review and approve the form and content of all contracts that may be entered into pursuant to this subsection in connection with the development, operation and maintenance of additional lodging units at Stonewall Jackson Lake State Park.
The bill (Eng. H. B. No. 4567), as amended, was then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Wells, White and Tomblin (Mr. President)--28.
The nays were: Sypolt, Unger and Yoder--3.
Absent: Bailey and Sharpe--2.
Excused from voting: McCabe--1.
Having been engrossed, the bill (Eng. H. B. No. 4567) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Wells, White, Yoder and Tomblin (Mr. President)--29.
The nays were: Sypolt and Unger--2.
Absent: Bailey and Sharpe--2.
Excused from voting: McCabe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4567) passed.
The following amendment to the title of the bill, from the Committee on Natural Resources, was reported by the Clerk and adopted:
Eng. House Bill No. 4567--A Bill to amend and reenact §20-5-16 of the Code of West Virginia, 1931, as amended, relating to allowing the Director of the Division of Natural Resources to enter into contracts granting long-term usage and related rights and privileges to third parties sufficient to attract private investment for the financing, construction and operation of additional lodging units at Stonewall Jackson Lake State Park; establishing requirements and restrictions regarding the development, operation and maintenance of additional lodging units and all contracts related to the additional lodging units; requiring the development of a lodging unit development plan that is to be presented to the Joint Committee on Government and Finance prior to development; and protecting the state from any liabilities or obligations associated with the development of the additional lodging units.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4617, Allowing e-notification by using e-certified cards for verification of certified mail acceptance to the court of origin for service of process.
On second reading, coming up out of regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §31B-1-111 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §31D-5-504 of said code be amended and reenacted; that §31D-15-1510 of said code be amended and reenacted; that §31E-5-504 of said code be amended and reenacted; that §31E-14-1410 of said code be amended and reenacted; that §46A-2-137 of said code be amended and reenacted; that §47-9-4 of said code be amended and reenacted; and that §56-3-31 and §56-3- 33 of said code be amended and reenacted, all to read as follows:
CHAPTER 31B. UNIFORM LIMITED LIABILITY COMPANY ACT.
ARTICLE 1. GENERAL PROVISIONS.
§31B-1-111. Service of process.

(a) An agent for service of process appointed by a limited liability company or a foreign limited liability company is an agent of the company for service of any process, notice or demand required or permitted by law to be served upon the company.
(b) If a limited liability company or foreign limited liability company fails to appoint or maintain an agent for service of process in this state or the agent for service of process cannot with reasonable diligence be found at the agent's address, the secretary of state is an agent of the company upon whom process, notice or demand may be served.
(c) Service of any process, notice or demand on the secretary of state may be made by delivering to and leaving with the secretary of state, the assistant secretary of state or clerk having charge of the limited liability company department of the secretary of state, the original process, notice or demand and two copies thereof for each defendant, along with the fee required by section two, article one, chapter fifty-nine of this code. No process, notice or demand may be served on or accepted by the secretary of state less than ten days before the return day thereof. If the process, notice or demand is served on the secretary of state, the secretary of state shall forward one of the copies by registered or certified mail, return receipt requested, to the company at its designated office and shall file in his or her office a copy of such process, notice or demand, with a note thereon endorsed of the time of service, or acceptance, as the case may be. The secretary of state, upon being served with or accepting any process, notice or demand, shall: (1) File in his or her office a copy of the process, notice or demand, endorsed as of the time of service or acceptance; and (2) transmit one copy of the process, notice or demand by registered or certified mail, return receipt requested, by a means which may include electronic issuance and acceptance of electronic return receipts, to the limited liability company's registered agent: Provided, That if there is no registered agent, then to the individual whose name and address was last given to the secretary of state's office as the person designated to receive process, notice or demand. If no person has been named, then to the principal office of the limited liability company at the address last given to the secretary of state's office and if no address is available on record with the secretary of state then to the address provided on the original process, notice or demand, if available; and (3) transmit the original process, notice or demand to the clerk's office of the court from which the process, notice or demand was issued. Such service or acceptance of process, notice or demand is sufficient if the return receipt is signed by an agent or employee of such company, or the registered or certified mail so sent by the secretary of state is refused by the addressee and the registered or certified mail is returned to the secretary of state, showing the stamp of the United States postal service that delivery thereof has been refused, and such return receipt or registered or certified mail is received by the secretary of state by a means which may include electronic issuance and acceptance of electronic return receipts. ~~appended to the original process, notice or demand and filed in the clerk's office of the court from which the process, notice or demand was issued.~~ After receiving verification from the United States postal service that acceptance of process, notice or demand has been signed, the secretary of state shall notify the clerk's office of the court from which the process, notice or demand was issued by a means which may include electronic notification. If the process, notice or demand was refused or undeliverable by the United States postal service the secretary of state shall return refused or undeliverable mail to the clerk's office of the court from which the process, notice or demand was issued. No process, notice or demand may be served on the secretary of state or accepted by him or her less than ten days before the return day of the process or notice. The court may order continuances as may be reasonable to afford each defendant opportunity to defend the action or proceedings.
(d) The secretary of state shall keep a record of all processes, notices and demands served pursuant to this section and record the time of and the action taken regarding the service.
(e) This section does not affect the right to serve process, notice or demand in any manner otherwise provided by law.
CHAPTER 31D. WEST VIRGINIA BUSINESS CORPORATION ACT.
ARTICLE 5. OFFICE AND AGENT.
§31D-5-504. Service on corporation.
(a) A corporation's registered agent is the corporation's agent for service of process, notice or demand required or permitted by law to be served on the corporation.
(b) If a corporation has no registered agent, or the agent cannot with reasonable diligence be served, the corporation may be served by registered or certified mail, return receipt requested, addressed to the secretary of the corporation at its principal office. Service is perfected under this subsection at the earliest of:
(1) The date the corporation receives the mail;
(2) The date shown on the return receipt, if signed on behalf of the corporation; or
(3) Five days after its deposit in the United States mail, as evidenced by the postmark, if mailed postpaid and correctly addressed.
(c) In addition to the methods of service on a corporation provided in subsections (a) and (b) of this section, the Secretary of State is hereby constituted the attorney-in-fact for and on behalf of each corporation created pursuant to the provisions of this chapter. The Secretary of State has the authority to accept service of notice and process on behalf of each corporation and is an agent of the corporation upon whom service of notice and process may be made in this state for and upon each corporation. No act of a corporation appointing the Secretary of State as attorney-in-fact is necessary. Service of any process, notice or demand on the Secretary of State may be made by delivering to and leaving with the Secretary of State the original process, notice or demand and two copies of the process, notice or demand for each defendant, along with the fee required by section two, article one, chapter fifty-nine of this code: Provided, That with regard to a class action suit in which all defendants are to be served with the same process, notice or demand, service may be made by filing with the Secretary of State the original process, notice or demand and one copy for each named defendant. Immediately after being served with or accepting any process or notice, the Secretary of State shall: (1) File in his or her office a copy of the process or notice, endorsed as of the time of service or acceptance; ~~and~~ (2) transmit one copy of the process or notice by registered or certified mail, return receipt requested, by a means which may include electronic issuance and acceptance of electronic return receipts, to: (A) The corporation's registered agent; or (B) if there is no registered agent, to the individual whose name and address was last given to the Secretary of State's office as the person to whom notice and process are to be sent and if no person has been named, to the principal office of the corporation as that address was last given to the Secretary of State's office. If no address is available on record with the secretary of state, then to the address provided on the original process, notice or demand, if available; and (3) transmit the original process, notice or demand to the clerk's office of the court from which the process, notice or demand was issued. Service or acceptance of process or notice is sufficient if return receipt is signed by an agent or employee of the corporation, or the registered or certified mail sent by the Secretary of State is refused by the addressee and the registered or certified mail is returned to the Secretary of State, or to his or her office, showing the stamp of the United States postal service that delivery has been refused, and the return receipt or registered or certified mail is received by the secretary of state by a means which may include electronic issuance and acceptance of electronic return receipts. ~~appended to the original process or notice and filed in the clerk's office of the court from which the process or notice was issued.~~ After receiving verification from the United States postal service that acceptance of process, notice or demand has been signed, the secretary of state shall notify the clerk's office of the court from which the process, notice or demand was issued by a means which may include electronic notification. If the process, notice or demand was refused or undeliverable by the United States postal service the secretary of state shall return the refused or undeliverable mail to the clerk's office of the court from which the process, notice or demand was issued. No process or notice may be served on the Secretary of State or accepted by him or her less than ten days before the return day of the process or notice. The court may order continuances as may be reasonable to afford each defendant opportunity to defend the action or proceedings.
(d) This section does not prescribe the only means, or necessarily the required means, of serving a corporation.
ARTICLE 15. FOREIGN CORPORATIONS.
§31D-15-1510. Service on foreign corporation.
(a) The registered agent of a foreign corporation authorized to transact business in this state is the corporation's agent for service of process, notice or demand required or permitted by law to be served on the foreign corporation.
(b) A foreign corporation may be served by registered or certified mail, return receipt requested, addressed to the secretary of the foreign corporation at its principal office shown in its application for a certificate of authority or in its most recent return required pursuant to section three, article twelve-c, chapter eleven of this code if the foreign corporation:
(1) Has no registered agent or its registered agent cannot with reasonable diligence be served;
(2) Has withdrawn from transacting business in this state under section one thousand five hundred twenty of this article; or
(3) Has had its certificate of authority revoked under section one thousand five hundred thirty-one of this article.
(c) Service is perfected under subsection (b) of this section at the earliest of:
(1) The date the foreign corporation receives the mail;
(2) The date shown on the return receipt, if signed on behalf of the foreign corporation; or
(3) Five days after its deposit in the United States mail, as evidenced by the postmark, if mailed postpaid and correctly addressed.
(d) In addition to the methods of service on a foreign corporation provided in subsections (a) and (b) of this section, the secretary of state is hereby constituted the attorney-in-fact for and on behalf of each foreign corporation authorized to do or transact business in this state pursuant to the provisions of this chapter. The secretary of state has the authority to accept service of notice and process on behalf of each corporation and is an agent of the corporation upon whom service of notice and process may be made in this state for and upon each corporation. No act of a corporation appointing the secretary of state as attorney-in-fact is necessary. Service of any process, notice or demand on the secretary of state may be made by delivering to and leaving with the secretary of state the original process, notice or demand and ~~two copies~~ one copy of the process, notice or demand for each defendant, along with the fee required by section two, article one, chapter fifty-nine of this code. Immediately after being served with or accepting any process or notice, the secretary of state shall: (1) File in his or her office a copy of the process or notice, endorsed as of the time of service or acceptance; ~~and~~ (2) transmit one copy of the process or notice by registered or certified mail, return receipt requested, by a means which may include electronic issuance and acceptance of electronic return receipts, to: (A) The foreign corporation's registered agent; or (B) if there is no registered agent, to the individual whose name and address was last given to the secretary of state's office as the person to whom notice and process are to be sent and if no person has been named, to the principal office of the foreign corporation as that address was last given to the secretary of state's office. If no address is available on record with the secretary of state, then to the address provided on the original process, notice or demand, if available; and (3) transmit the original process, notice or demand to the clerk's office of the court from which the process, notice or demand was issued. Service or acceptance of process or notice is sufficient if return receipt is signed by an agent or employee of the corporation, or the registered or certified mail sent by the secretary of state is refused by the addressee and the registered or certified mail is returned to the secretary of state, or to his or her office, showing the stamp of the United States postal service that delivery has been refused, and the return receipt or registered or certified mail is received by the secretary of state by a means which may include electronic issuance and acceptance of electronic return receipts. ~~appended to the original process or notice and filed in the clerk's office of the court from which the process or notice was issued.~~ After receiving verification from United States postal service that acceptance of process, notice or demand has been accepted, the secretary of state shall notify the clerk's office of the court from which the process, notice or demand was issued by means which may include electronic notification. If the process, notice or demand was refused or undeliverable by the United States postal service the secretary of state shall return the refused or undeliverable mail to the clerk's office of the court from which the process, notice or demand was issued. No process or notice may be served on the secretary of state or accepted by him or her less than ten days before the return day of the process or notice. The court may order continuances as may be reasonable to afford each defendant opportunity to defend the action or proceedings.
(e) Any foreign corporation doing or transacting business in this state without having been authorized to do so pursuant to the provisions of this chapter is conclusively presumed to have appointed the secretary of state as its attorney-in-fact with authority to accept service of notice and process on behalf of the corporation and upon whom service of notice and process may be made in this state for and upon the corporation in any action or proceeding arising from activities described in section one thousand five hundred one of this article. No act of a corporation appointing the secretary of state as its attorney-in-fact is necessary. Immediately after being served with or accepting any process or notice, of which process or notice ~~two copies~~ one copy for each defendant are to be furnished to the secretary of state with the original notice or process, together with the fee required by section two, article one, chapter fifty-nine of this code, the secretary of state shall file in his or her office a copy of the process or notice, with a note endorsed of the time of service or acceptance, and transmit one copy of the process or notice by registered or certified mail, return receipt requested, by a means which may include electronic issuance and acceptance of electronic return receipts, to the corporation at the address of its principal office, which address shall be stated in the process or notice. The service or acceptance of process or notice is sufficient if the return receipt is signed by an agent or employee of the corporation, or the registered or certified mail sent by the secretary of state is refused by the addressee and the registered or certified mail is returned to the secretary of state, or to his or her office, showing thereon the stamp of the United States postal service that delivery thereof has been refused and the return receipt or registered or certified mail is received by the secretary of state by a means which may include electronic issuance and acceptance of electronic return receipts. ~~appended to the original process or notice and filed therewith in the clerk's office of the court from which the process or notice was issued.~~ After receiving verification from the United States postal service that acceptance of process, notice or demand has been signed, the secretary of state shall notify the clerk's office of the court from which the process, notice or demand was issued by a means which may include electronic notification. If the process, notice or demand was refused or undeliverable by the United States postal service the secretary of state shall return refused or undeliverable mail to the clerk's office of the court from which the process, notice or demand was issued. No process or notice may be served on the secretary of state or accepted by him or her less than ten days before the return date thereof. The court may order continuances as may be reasonable to afford each defendant opportunity to defend the action or proceedings.
(f) This section does not prescribe the only means, or necessarily the required means, of serving a foreign corporation.
CHAPTER 31E. WEST VIRGINIA NONPROFIT CORPORATION ACT.
ARTICLE 5. OFFICE AND AGENT.
§31E-5-504. Service on corporation.
(a) A corporation's registered agent is the corporation's agent for service of process, notice, or demand required or permitted by law to be served on the corporation.
(b) If a corporation has no registered agent, or the agent cannot with reasonable diligence be served, the corporation may be served by registered or certified mail, return receipt requested, addressed to the secretary of the corporation at its principal office. Service is perfected under this subsection at the earliest of:
(1) The date the corporation receives the mail;
(2) The date shown on the return receipt, if signed on behalf of the corporation; or
(3) Five days after its deposit in the United States mail, as evidenced by the postmark, if mailed postpaid and correctly addressed.
(c) In addition to the methods of service on a corporation provided in subsections (a) and (b) of this section, the secretary of state is hereby constituted the attorney-in-fact for and on behalf of each corporation created pursuant to the provisions of this chapter. The secretary of state has the authority to accept service of notice and process on behalf of each corporation and is an agent of the corporation upon whom service of notice and process may be made in this state for and upon each corporation. No act of a corporation appointing the secretary of state as attorney-in-fact is necessary. Service of any process, notice or demand on the secretary of state may be made by delivering to and leaving with the secretary of state the original process, notice or demand and two copies of the process, notice or demand for each defendant, along with the fee required by section two, article one, chapter fifty-nine of this code. Immediately after being served with or accepting any process or notice, the secretary of state shall: (1) File in his or her office a copy of the process or notice, endorsed as of the time of service, or acceptance; ~~and~~ (2) transmit one copy of the process or notice by registered or certified mail, return receipt requested, by a means which may include electronic issuance and acceptance of electronic return receipts, to: (A) The corporation's registered agent; or (B) if there is no registered agent, to the individual whose name and address was last given to the secretary of state's office as the person to whom notice and process are to be sent, and if no person has been named, to the principal office of the corporation as that address was last given to the secretary of state's office; and if no address is available on record with the secretary of state, then to the address provided on the original process, notice or demand, if available; and (3) transmit the original process, notice or demand to the clerk's office of the court from which the process, notice or demand was issued. Service or acceptance of process or notice is sufficient if return receipt is signed by an agent or employee of the corporation, or the registered or certified mail sent by the secretary of state is refused by the addressee and the registered or certified mail is returned to the secretary of state, or to his or her office, showing the stamp of the United States postal service that delivery has been refused, and the return receipt or registered or certified mail is received by the secretary of state by a means which may include electronic issuance and acceptance of electronic return receipts. ~~appended to the original process or notice and filed in the clerk's office of the court from which the process or notice was issued.~~ After receiving verification from the United States postal service that acceptance of process, notice or demand has been signed, the secretary of state shall notify the clerk's office of the court from which the process, notice or demand was issued by a means which may include electronic notification. If the process, notice or demand was refused or undeliverable by the United States postal service, the secretary of state shall return the refused or undeliverable mail to the clerk's office from which the process, notice or demand was issued. No process or notice may be served on the secretary of state or accepted by him or her less than ten days before the return day of the process or notice. The court may order continuances as may be reasonable to afford each defendant opportunity to defend the action or proceedings.
(d) This section does not prescribe the only means, or necessarily the required means of serving a corporation.
ARTICLE 14. FOREIGN CORPORATIONS.
Part 1. Certificate of Authority.
§31E-14-1410. Service on foreign corporation.
(a) The registered agent of a foreign corporation authorized to conduct activities in this state is the corporation's agent for service of process, notice, or demand required or permitted by law to be served on the foreign corporation.
(b) A foreign corporation may be served by registered or certified mail, return receipt requested, addressed to the secretary of the foreign corporation at its principal office shown in its application for a certificate of authority or in its most recent return required pursuant to section three, article twelve-c, chapter eleven of this code if the foreign corporation:
(1) Has no registered agent or its registered agent cannot with reasonable diligence be served;
(2) Has withdrawn from conducting activities in this state under section one thousand four hundred twenty of this article; or
(3) Has had its certificate of authority revoked under section one thousand four hundred thirty-one of this article.
(c)Service is perfected under subsection (b) of this section at the earliest of:
(1) The date the foreign corporation receives the mail;
(2) The date shown on the return receipt, if signed on behalf of the foreign corporation; or
(3) Five days after its deposit in the United States mail, as evidenced by the postmark, if mailed postpaid and correctly addressed.
(d) In addition to the methods of service on a foreign corporation provided in subsections (a) and (b) of this section, the secretary of state is hereby constituted the attorney-in-fact for and on behalf of each foreign corporation authorized to conduct affairs in this state pursuant to the provisions of this chapter. The secretary of state has the authority to accept service of notice and process on behalf of each corporation and is an agent of the corporation upon whom service of notice and process may be made in this state for and upon each corporation. No act of a corporation appointing the secretary of state as attorney-in-fact is necessary. Service of any process, notice or demand on the secretary of state may be made by delivering to and leaving with the secretary of state the original process, notice or demand and two copies of the process, notice or demand for each defendant, along with the fee required by section two, article one, chapter fifty-nine of this code. Immediately after being served with or accepting any process or notice, the secretary of state shall: (1) File in his or her office a copy of the process or notice, endorsed as of the time of service, or acceptance; ~~and~~ (2) transmit one copy of the process or notice by registered or certified mail, return receipt requested, by a means which may include electronic issuance and acceptance of electronic return receipts, to: (A) The foreign corporation's registered agent; or (B) if there is no registered agent, to the individual whose name and address was last given to the secretary of state's office as the person to whom notice and process are to be sent, and if no person has been named, to the principal office of the foreign corporation as that address was last given to the secretary of state's office. If no address is available on record with the secretary of state, then to the address provided on the original process, notice or demand, if available; and (3) transmit the original process, notice or demand to the clerk's office of the court from which the process, notice or demand was issued. Service or acceptance of process or notice is sufficient if return receipt is signed by an agent or employee of the corporation, or the registered or certified mail sent by the secretary of state is refused by the addressee and the registered or certified mail is returned to the secretary of state, or to his or her office, showing the stamp of the United States postal service that delivery has been refused, and the return receipt or registered or certified mail is received by the secretary of state by a means which may include electronic issuance and acceptance of electronic return receipts. ~~appended to the original process or notice and filed in the clerk's office of the court from which the process or notice was issued.~~ After receiving verification from United States postal service that acceptance of process, notice or demand has been accepted, the secretary of state shall notify the clerk's office of the court from which the process, notice or demand was issued by means which may include electronic notification. If the process, notice or demand was refused or undeliverable by the United States postal service the secretary of state shall return the refused or undeliverable mail to the clerk's office of the court from which the process, notice or demand was issued. No process or notice may be served on the secretary of state or accepted by him or her less than ten days before the return day of the process or notice. The court may order continuances as may be reasonable to afford each defendant opportunity to defend the action or proceedings.
(e) Any foreign corporation conducting affairs in this state without having been authorized to do so pursuant to the provisions of this chapter is conclusively presumed to have appointed the secretary of state as its attorney-in-fact with authority to accept service of notice and process on behalf of the corporation and upon whom service of notice and process may be made in this state for and upon the corporation in any action or proceeding arising from activities described in section one thousand four hundred one of this article. No act of a corporation appointing the secretary of state as its attorney-in-fact is necessary. Immediately after being served with or accepting any process or notice, of which process or notice two copies for each defendant are to be furnished to the secretary of state with the original notice or process, together with the fee required by section two, article one, chapter fifty- nine of this code, the secretary of state shall file in his or her office a copy of the process or notice, with a note endorsed of the time of service or acceptance, and transmit one copy of the process or notice by registered or certified mail, return receipt requested, by a means which may include electronic issuance and acceptance of electronic return receipts, to the corporation at the address of its principal office, which address shall be stated in the process or notice. The service or acceptance of process or notice is sufficient if the return receipt is signed by an agent or employee of the corporation, or the registered or certified mail sent by the secretary of state is refused by the addressee and the registered or certified mail is returned to the secretary of state, or to his or her office, showing thereon the stamp of the United States postal service that delivery thereof has been refused, and the return receipt or registered or certified mail is received by the secretary of state by a means which may include electronic issuance and acceptance of electronic return receipts. ~~appended to the original process or notice and filed therewith in the clerk's office of the court from which the process or notice was issued.~~ After receiving verification from the United States postal service that acceptance of process, notice or demand has been signed, the secretary of state shall notify the clerk's office of the court from which the process, notice or demand was issued by a means which may include electronic notification. If the process, notice or demand was refused or undeliverable by the United States postal service the secretary of state shall return refused or undeliverable mail to the clerk's office of the court from which the process, notice or demand was issued. No process or notice may be served on the secretary of state or accepted by him or her less than ten days before the return date thereof. The court may order continuances as may be reasonable to afford each defendant opportunity to defend the action or proceedings.
(f) This section does not prescribe the only means, or necessarily the required means, of serving a foreign corporation. CHAPTER 46A. WEST VIRGINIA CONSUMER CREDIT
AND PROTECTION ACT.
ARTICLE 2. CONSUMER CREDIT PROTECTION.
§46A-2-137. Service of process on certain nonresidents.
Any nonresident person, except a nonresident corporation authorized to do business in this state pursuant to the provisions of chapter thirty-one of this code, who takes or holds any negotiable instrument, nonnegotiable instrument, or contract or other writing, arising from a consumer credit sale or consumer lease which is subject to the provisions of this article, other than a sale or lease primarily for an agricultural purpose, or who is a lender subject to the provisions of section one hundred three of this article, shall be conclusively presumed to have appointed the secretary of state as his attorney-in-fact with authority to accept service of notice and process in any action or proceeding brought against him arising out of such consumer credit sale, consumer lease or consumer loan. A person shall be considered a nonresident hereunder if he is a nonresident at the time such service of notice and process is sought. No act of such person appointing the secretary of state shall be necessary. Immediately after being served with or accepting any such process or notice, of which process or notice two copies for each defendant shall be furnished the secretary of state with the original notice or process, together with the fee required by section two, article one, chapter fifty-nine of this code, the secretary of state shall file in his office a copy of such process or notice, with a note thereon endorsed of the time of service or acceptance, as the case may be, and transmit one copy of such process or notice by registered or certified mail, return receipt requested, by a means which may include electronic issuance and acceptance of electronic return receipts, to such person at his address, which address shall be stated in such process or notice: Provided, That such return receipt shall be signed by such person or an agent or employee of such person if a corporation, or the registered or certified mail so sent by said secretary of state is refused by the addressee and the registered or certified mail is returned to said secretary of state, or to his office, showing thereon the stamp of the U.S. postal service that delivery thereof has been refused, and such return receipt or registered or certified mail is appended to the original process or notice and filed therewith in the clerk's office of the court from which such process or notice was issued. after receiving verification from the United States postal service that acceptance of process or notice has been signed, the secretary of state shall notify the clerk's office of the court from which the process or notice was issued by a means which may include electronic notification. If the process or notice was refused or undeliverable by the United States postal service the secretary of state shall return refused or undeliverable mail to the clerk's office of the court from which the process or notice was issued. But no process or notice shall be served on the secretary of state or accepted fewer than ten days before the return date thereof. The court may order such continuances as may be reasonable to afford each defendant opportunity to defend the action or proceeding.
The provisions for service of process or notice herein are cumulative and nothing herein contained shall be construed as a bar to the plaintiff in any action from having process or notice in such action served in any other mode and manner provided by law.
CHAPTER 47. REGULATION OF TRADE.
ARTICLE 9. UNIFORM LIMITED PARTNERSHIP ACT.

§47-9-4. Secretary of state constituted attorney-in-fact for all limited partnerships; manner of acceptance or service of notice and process upon secretary of state; what constitutes conducting affairs or doing or transacting business in this state for purposes of this section.

The secretary of state is hereby constituted the attorney-in- fact for and on behalf of every limited partnership created by virtue of the laws of this state and every foreign limited partnership authorized to conduct affairs or do or transact business herein pursuant to the provisions of this article, with authority to accept service of notice and process on behalf of every such limited partnership and upon whom service of notice and process may be made in this state for and upon every such limited partnership. No act of such limited partnership appointing the secretary of state such attorney-in-fact shall be necessary. Immediately after being served with or accepting any such process or notice, of which process or notice two copies for each defendant shall be furnished the secretary of state with the original notice or process, together with the fee required by section two, article one, chapter fifty-nine of this code, the secretary of state shall file in his office a copy of such process or notice, with a note thereon endorsed of the time of service or acceptance, as the case may be, and transmit one copy of such process or notice by registered or certified mail, return receipt requested, to the person to whom notice and process shall be sent, whose name and address were last furnished to the state officer at the time authorized by statute to accept service of notice and process and upon whom notice and process may be served; and if no such person has been named, to the principal office of the limited partnership at the address last furnished to the state officer at the time authorized by statute to accept service of process and upon whom process may be served, as required by law, or if no address is available on record with the secretary of state then to the address provided on the original process or process, if available. No process or notice shall be served on the secretary of state or accepted by him less than ten days before the return day thereof. Such limited partnership shall pay the annual fee prescribed by article twelve, chapter eleven of this code for the services of the secretary of state as its attorney-in-fact.
Any foreign limited partnership which shall conduct affairs or do or transact business in this state without having been authorized so to do pursuant to the provisions of this article shall be conclusively presumed to have appointed the secretary of state as its attorney-in-fact with authority to accept service of notice and process on behalf of such limited partnership and upon whom service of notice and process may be made in this state for and upon every such limited partnership in any action or proceeding described in the next following paragraph of this section. No act of such limited partnership appointing the secretary of state as such attorney-in-fact shall be necessary. Immediately after being served with or accepting any such process or notice, of which process or notice two copies for each defendant shall be furnished the secretary of state with the original notice or process, together with the fee required by section two, article one, chapter fifty-nine of this code, the secretary of state shall file in his office a copy of such process or notice, with a note thereon endorsed of the time of service or acceptance, as the case may be, and transmit one copy of such process or notice by registered or certified mail, return receipt requested, by a means which may include electronic issuance and acceptance of electronic return receipts, to such limited partnership at the address of its principal office, which address shall be stated in such process or notice. Such service or acceptance of such process or notice shall be sufficient if such return receipt shall be signed by an agent or employee of such limited partnership., or the registered or certified mail so sent by the secretary of state is refused by the addressee and the registered or certified mail is returned to the secretary of state, or to his office, showing thereon the stamp of the United States postal service that delivery thereof has been refused, and such return receipt or registered or certified mail is appended to the original process or notice and filed therewith in the clerk's office of the court from which such process or notice was issued. After receiving verification from the United States postal service that acceptance of process or notice has been signed, the secretary of state shall notify the clerk's office of the court from which the process or notice was issued by a means which may include electronic notification. If the process or notice was refused or undeliverable by the United State postal service the secretary of state shall return refused or undeliverable mail to the clerk's office of the court from which the process or notice was issued. No process or notice shall be served on the secretary of state or accepted by him less than ten days before the return date thereof. The court may order such continuances as may be reasonable to afford each defendant opportunity to defend the action or proceedings.
For the purpose of this section, a foreign limited partnership not authorized to conduct affairs or do or transact business in this state pursuant to the provisions of this article shall nevertheless be deemed to be conducting affairs or doing or transacting business herein (a) if such limited partnership makes a contract to be performed, in whole or in part, by any party thereto in this state, (b) if such limited partnership commits a tort, in whole or in part, in this state, or (c)if such limited partnership manufactures, sells, offers for sale or supplies any product in a defective condition and such product causes injury to any person or property within this state notwithstanding the fact that such limited partnership had no agents, servants or employees or contacts within this state at the time of said injury. The making of such contract, the committing of such tort or the manufacture or sale, offer of sale or supply of such defective product as herein above described shall be deemed to be the agreement of such limited partnership that any notice or process served upon, or accepted by, the secretary of state pursuant to the next preceding paragraph of this section in any action or proceeding against such limited partnership arising from or growing out of such contract, tort or manufacture or sale, offer of sale or supply of such defective product shall be of the same legal force and validity as process duly served on such limited partnership in this state.
CHAPTER 56. PLEADING AND PRACTICE.
ARTICLE 3. WRITS, PROCESS AND ORDER OF PUBLICATION.

§56-3-31. Actions by or against nonresident operators of motor vehicles involved in highway accidents; appointment of secretary of state, insurance company, as agents; service of process.

(a) Every nonresident, for the privilege of operating a motor vehicle on a public street, road or highway of this state, either personally or through an agent, appoints the secretary of state, or his or her successor in office, to be his or her agent or attorney- in-fact upon whom may be served all lawful process in any action or proceeding against him or her in any court of record in this state arising out of any accident or collision occurring in the state of West Virginia in which the nonresident was involved: Provided, That in the event process against a nonresident defendant cannot be effected through the secretary of state, as provided by this section, for the purpose only of service of process, the nonresident motorist shall be considered to have appointed as his or her agent or attorney-in-fact any insurance company which has a contract of automobile or liability insurance with the nonresident defendant.
(b) For purposes of service of process as provided in this section, every insurance company shall be considered the agent or attorney-in-fact of every nonresident motorist insured by that company if the insured nonresident motorist is involved in any accident or collision in this state and service of process cannot be effected upon the nonresident through the office of the secretary of state. Upon receipt of process as provided in this section, the insurance company may, within thirty days, file an answer or other pleading or take any action allowed by law on behalf of the defendant.
(c) A nonresident operating a motor vehicle in this state, either personally or through an agent, is considered to acknowledge the appointment of the secretary of state, or, as the case may be, his or her automobile insurance company, as his or her agent or attorney-in-fact, or the agent or attorney-in-fact of his or her administrator, administratrix, executor or executrix in the event the nonresident dies, and furthermore is considered to agree that any process against him or her or against his or her administrator, administratrix, executor or executrix, which is served in the manner provided in this section, shall be of the same legal force and validity as though the nonresident or his or her administrator, administratrix, executor or executrix were personally served with a summons and complaint within this state.
Any action or proceeding may be instituted, continued or maintained on behalf of or against the administrator, administratrix, executor or executrix of any nonresident who dies during or subsequent to an accident or collision resulting from the operation of a motor vehicle in this state by the nonresident or his or her duly authorized agent.
(d) Service of process upon a nonresident defendant shall be made by leaving the original and two copies of both the summons and complaint, together with the bond certificate of the clerk, and the fee required by section two, article one, chapter fifty-nine of this code with the secretary of state, or in his or her office, and the service shall be sufficient upon the nonresident defendant or, if a natural person, his or her administrator, administratrix, executor or executrix: Provided, That notice of service and a copy of the summons and complaint shall be sent by registered or certified mail, return receipt requested, by a means which may include electronic issuance and acceptance of electronic return receipts, by the secretary of state to the nonresident defendant. The return receipt signed by the defendant or his or her duly authorized agent shall be attached to the original summons and complaint and filed in the office of the clerk of the court from which process is issued. In the event the registered or certified mail sent by the secretary of state is refused or unclaimed by the addressee or if the addressee has moved without any forwarding address, the registered or certified mail returned to the secretary of state, or to his or her office, showing on the mail the stamp of the post office department that delivery has been refused or not claimed or that the addressee has moved without any forwarding address, shall be appended to the original summons and complaint and filed in the clerk's office of the court from which process issued. After receiving verification from the United States postal service that acceptance of process, notice or demand has been signed, the secretary of state shall notify the clerk's office of the court from which the process, notice or demand was issued by a means which may include electronic notification. If the process, notice or demand was refused or undeliverable by the United State postal service the secretary of state shall return refused or undeliverable mail to the clerk's office of the court from which the process, notice or demand was issued. The court may order any reasonable continuances to afford the defendant opportunity to defend the action.
(e) The fee remitted to the secretary of state at the time of service shall be taxed in the costs of the proceeding. The secretary of state shall keep a record in his or her office of all service of process and the day and hour of service of process.
(f) In the event service of process upon a nonresident defendant cannot be effected through the secretary of state as provided by this section, service may be made upon the defendant's insurance company. The plaintiff shall file with the clerk of the circuit court an affidavit alleging that the defendant is not a resident of this state; that process directed to the secretary of state was sent by registered or certified mail, return receipt requested; that the registered or certified mail was returned to the office of the secretary of state showing the stamp of the post office department that delivery was refused or that the notice was unclaimed or that the defendant addressee moved without any forwarding address; and that the secretary of state has complied with the provisions of subsection (d) of this section. Upon receipt of process the insurance company may, within thirty days, file an answer or other pleading and take any action allowed by law in the name of the defendant.
(g) The following words and phrases, when used in this article, for the purpose of this article and unless a different intent on the part of the Legislature is apparent from the context, have the following meanings:
(1) "Duly authorized agent" means and includes, among others, a person who operates a motor vehicle in this state for a nonresident as defined in this section and chapter, in pursuit of business, pleasure or otherwise, or who comes into this state and operates a motor vehicle for, or with the knowledge or acquiescence of, a nonresident; and includes, among others, a member of the family of the nonresident or a person who, at the residence, place of business or post office of the nonresident, usually receives and acknowledges receipt for mail addressed to the nonresident.
(2) "Motor vehicle" means and includes any self-propelled vehicle, including a motorcycle, tractor and trailer, not operated exclusively upon stationary tracks.
(3) "Nonresident" means any person who is not a resident of this state or a resident who has moved from the state subsequent to an accident or collision and among others includes a nonresident firm, partnership, corporation or voluntary association, or a firm, partnership, corporation or voluntary association that has moved from the state subsequent to an accident or collision.
(4) "Nonresident plaintiff or plaintiffs" means a nonresident who institutes an action in a court in this state having jurisdiction against a nonresident in pursuance of the provisions of this article.
(5) "Nonresident defendant or defendants" means a nonresident motorist who, either personally or through his or her agent, operated a motor vehicle on a public street, highway or road in this state and was involved in an accident or collision which has given rise to a civil action filed in any court in this state.
(6) "Street", "road" or "highway" means the entire width between property lines of every way or place of whatever nature when any part of the street, road or highway is open to the use of the public, as a matter of right, for purposes of vehicular traffic.
(7) "Insurance company" means any firm, corporation, partnership or other organization which issues automobile insurance.
(h) The provision for service of process in this section is cumulative and nothing contained in this section shall be construed as a bar to the plaintiff in any action from having process in the action served in any other mode and manner provided by law.

§56-3-33. Actions by or against nonresident persons having certain contracts with this state; authorizing secretary of state to receive process; bond and fees; service of process; definitions; retroactive application.

(a) The engaging by a nonresident, or by his or her duly authorized agent, in any one or more of the acts specified in subdivisions (1) through (7) of this subsection shall be deemed equivalent to an appointment by such nonresident of the secretary of state, or his or her successor in office, to be his or her true and lawful attorney upon whom may be served all lawful process in any action or proceeding against him or her, in any circuit court in this state, including an action or proceeding brought by a nonresident plaintiff or plaintiffs, for a cause of action arising from or growing out of such act or acts, and the engaging in such act or acts shall be a signification of such nonresident's agreement that any such process against him or her, which is served in the manner hereinafter provided, shall be of the same legal force and validity as though such nonresident were personally served with a summons and complaint within this state:
(1) Transacting any business in this state;
(2) Contracting to supply services or things in this state;
(3) Causing tortious injury by an act or omission in this state;
(4) Causing tortious injury in this state by an act or omission outside this state if he or she regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state;
(5) Causing injury in this state to any person by breach of warranty expressly or impliedly made in the sale of goods outside this state when he or she might reasonably have expected such person to use, consume or be affected by the goods in this state: Provided, That he or she also regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state;
(6) Having an interest in, using or possessing real property in this state; or
(7) Contracting to insure any person, property or risk located within this state at the time of contracting.
(b) When jurisdiction over a nonresident is based solely upon the provisions of this section, only a cause of action arising from or growing out of one or more of the acts specified in subdivisions (1) through (7), subsection (a) of this section may be asserted against him or her.
(c) Service shall be made by leaving the original and two copies of both the summons and the complaint, and the fee required by section two, article one, chapter fifty-nine of this code with the secretary of state, or in his or her office, and such service shall be sufficient upon such nonresident: Provided, That notice of such service and a copy of the summons and complaint shall forthwith be sent by registered or certified mail, return receipt requested, by a means which may include electronic issuance and acceptance of electronic return receipts, by the secretary of state to the defendant at his or her nonresident address and the defendant's return receipt signed by himself or herself or his or her duly authorized agent or the registered or certified mail so sent by the secretary of state which is refused by the addressee and which registered or certified mail is returned to the secretary of state, or to his or her office, showing thereon the stamp of the post-office department that delivery has been refused, ~~shall be appended to the original summons and complaint and filed therewith in the clerk's office of the court from which process issued.~~ After receiving verification from the United States postal service that acceptance of process, notice or demand has been signed, the secretary of state shall notify the clerk's office of the court from which the process, notice or demand was issued by a means which may include electronic notification. If the process, notice or demand was refused or undeliverable by the United States postal service the secretary of state shall return refused or undeliverable mail to the clerk's office of the court from which the process, notice or demand was issued. If any defendant served with summons and complaint fails to appear and defend within thirty days of service, judgment by default may be rendered against him or her at any time thereafter. The court may order such continuances as may be reasonable to afford the defendant opportunity to defend the action or proceeding.
(d) The fee remitted to the secretary of state at the time of service shall be taxed in the costs of the action or proceeding. The secretary of state shall keep a record in his or her office of all such process and the day and hour of service thereof.
(e) The following words and phrases, when used in this section, shall for the purpose of this section and unless a different intent be apparent from the context, have the following meanings:
(1) "Duly authorized agent" means and includes among others a person who, at the direction of or with the knowledge or acquiescence of a nonresident, engages in such act or acts and includes among others a member of the family of such nonresident or a person who, at the residence, place of business or post office of such nonresident, usually receives and receipts for mail addressed to such nonresident.
(2) "Nonresident" means any person, other than voluntary unincorporated associations, who is not a resident of this state or a resident who has moved from this state subsequent to engaging in such act or acts, and among others includes a nonresident firm, partnership or corporation or a firm, partnership or corporation which has moved from this state subsequent to any of said such act or acts.
(3) "Nonresident plaintiff or plaintiffs" means a nonresident of this state who institutes an action or proceeding in a circuit court in this state having jurisdiction against a nonresident of this state pursuant to the provisions of this section.
(f) The provision for service of process herein is cumulative and nothing herein contained shall be construed as a bar to the plaintiff in any action or proceeding from having process in such action served in any other mode or manner provided by the law of this state or by the law of the place in which the service is made for service in that place in an action in any of its courts of general jurisdiction.
(g) This section shall not be retroactive and the provisions hereof shall not be available to a plaintiff in a cause of action arising from or growing out of any of said acts occurring prior to the effective date of this section.
The bill (Eng. Com. Sub. for H. B. No. 4617), as amended, was then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4617) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4617) passed.
The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4617--A Bill to amend and reenact §31B-1-111 of the Code of West Virginia, 1931, as amended; to amend and reenact §31D-5-504 of said code; to amend and reenact §31D-15-1510 of said code; to amend and reenact §31E-5-504 of said code; to amend and reenact §31E-14-1410 of said code; to amend and reenact §46A-2-137 of said code; to amend and reenact §47-9-4 of said code; and to amend and reenact §56-3-31 and §56-3-33 of said code, all relating to service of process; service on corporation for-profit; service on corporation non-profit; service on foreign corporation; service of process on certain nonresidents; constituting the secretary of state as attorney-in-fact for all limited partnerships; service of process against non residents involved in motor vehicle accidents; service of process against nonresidents having certain contracts with this state.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4617) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4619, Collaborative Family Law Proceedings.
On second reading, coming up out of regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §48-5A-101 and §48-5A- 102, all to read as follows:
ARTICLE 5A. COLLABORATIVE FAMILY LAW PROCEEDINGS.
§48-5A-101. Legislative findings.
The Legislature finds that parties to family law actions often have particular needs and interests that may not be addressed through traditional litigation. The Legislature also finds that in the area of family law there may be an alternative approach to dispute resolution which targets settlement from the outset and which employs cooperative negotiation and problem solving that encourages compromise and direct communication among the parties.

§48-5A-102. Collaborative law generally; requesting the Supreme Court to study collaborative law procedures for possible implementation in this state.

(a) Collaborative law is a procedure in which parties who are involved in family law matters and the involved attorneys agree in writing to use their best efforts and make a good-faith attempt to resolve their disputes arising from family law matters on an agreed basis without resorting to judicial intervention, except to have a court approve the settlement agreement, make the legal pronouncements and sign the orders required by law to effectuate the agreement of the parties as the court determines appropriate.
(b) Several states have passed laws adopting collaborative law procedures. The Legislature requests that the Supreme Court of Appeals study the use of collaborative law procedures in the family courts of this state and, should the Court find that the procedures would be an effective alternative approach to dispute resolution in family law matters, promulgate rules for the implementation of the collaborative law procedures. The Legislature further requests that the Supreme Court of Appeals present its findings and any rules promulgated to the Legislature at the regular session of the Legislature, 2009.
The bill (Eng. Com. Sub. for H. B. No. 4619), as amended, was then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4619) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4619) passed.
The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4619--A Bill to amend the Code of West Virginia, 1931, as amended by adding thereto a new article, designated §48-5A-101 and §48-5A-102, all relating to requesting the Supreme Court of Appeals to study collaborative law procedures and to present its finding to the Legislature; and providing legislative findings.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4619) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4637, Relating to the deployment of broadband to the remaining unserved areas of the state.
On second reading, coming up out of regular order, was read a second time.
The following amendment to the bill, from the Committee on Transportation and Infrastructure, was reported by the Clerk:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §31-15C-1, §31-15C-2, §31-15C-3, §31-15C-4, §31-15C-5, §31-15C-6, §31-15C-7, §31-15C-8, §31-15C-9, §31-15C-10, §31-15C-11, §31-15C-12, §31-15C-13 and §31-15C-14, all to read as follows:
ARTICLE 15C. Broadband Deployment.
§31-15C-1. Legislative findings and purpose.
The Legislature finds as follows:
(1) That it is a primary goal of the Governor, the Legislature and the citizens of this state, by the year two thousand ten, to make every municipality, community, and rural area in this state, border to border, accessible to internet communications through the expansion, extension and general availability of broadband services and technology.
(2) That although market-driven deployment has extended broadband access to most of West Virginia's cities, towns, and other concentrated population areas, some areas of the state, mostly rural, remain unserved.
(3) That based upon the same network principles that providers of telephony services have faced since the inception of the telecommunications industry, rising fixed costs and technological limitations prohibit broadband networks from being extended into rural areas where the level of demand in sparsely populated areas may not justify the required costs of construction.
(4) That the unique topography and demography of this state that hinders the provision of broadband access to rural areas of the state specifically disadvantages the elderly and low-income households that are the least likely to own computers or subscribe to internet service. In light of these topographical and demographic challenges, any attempt to fill the gaps in West Virginia's broadband availability must be organized according to the levels of demand in the various unserved areas to which service is sought to be extended.
(5) That, in particular, fair and equitable access to twenty- first century technology that will maximize the functionality of educational resources and educational facilities that are conducive to enabling our children to be exposed to and to receive the best of future teaching and learning is absolutely essential to this state. A quality educational system of the twenty-first century should have access to the best technology tools and processes. Administrators should have, among other things, the electronic resources to monitor student performance, to manage data, and to communicate effectively. In the classroom, every teacher in every school should be provided with online access to educational technology resources and the ability to deliver content standard and objectives to the students of West Virginia. Schools of the twenty-first century require facilities that accommodate changing technologies and twenty-first century instructional processes.
(6) Accordingly, it is the purpose of the Legislature to provide for the development of plans, processes and procedures to be employed and dedicated to extending broadband access to West Virginians, and to their families, by stimulating demand for those services and for encouraging and facilitating the construction of the necessary infrastructure to meet their needs and demands.
(7) In implementing this initiative, progress by market forces and industry is to be respected, and the Legislature intends that governmental assistance and funding is to be used only in those areas without broadband service and not to duplicate or displace broadband service in areas already served or where industry feasibly can be expected to offer services in the reasonably foreseeable future.
§31-15C-2. Definitions.
(a) For the purposes of this article,
(1) "Broadband" or "broadband service" means any service providing advanced telecommunications capability with either a downstream data rate or upstream data rate of at least 200 kilobits per second, that does not require the end-user to dial up a connection that has the capacity to always be on, and for which the transmission speeds are based on regular available bandwidth rates, not sporadic or burstable rates, with a minimum downstream-to- upstream data ratio of 10:1 for services with a downstream data rate of up to five megabits per second, and with a minimum upstream data rate of 500 kilobits per second for services with a downstream data rate of five megabits per second or greater.
(2) "Broadband deployment project" means either (A) a project to provide broadband services to a type 2 and/or type 3 unserved area, as defined in section six of this article; or (B) a project to undertake activities to promote demand for broadband services and broadband applications.
(3) "Downstream data rate" means the transmission speed from the service provider source to the end-user.
(4) "Upstream data rate" means the transmission speed from the end-user to the service provider source.
(5) "Unserved area" means a community that has no access to broadband service.
(b) The definition of the term "broadband," the designation of areas that are "unserved", and the level of service required to qualify for funding of state programs and projects, are based on the Federal Communications Commission's current definition of broadband, which is stated in terms of the number of Kilobits (Kbps) per second, either upstream or downstream. It is the intention of the Legislature that the definition of broadband in this article and the level of service requirements for state funding be promptly updated by future Legislatures to conform with any revisions enacted by Congress or any rule or regulation promulgated by the Federal Communications Commission or other federal agencies involved with deploying and enhancing broadband services.

§31-15C-3. Broadband Deployment Council established; members of council; administrative support.

(a) The Broadband Deployment Council is hereby established. The council is a governmental instrumentality of the state. The exercise by the council of the powers conferred by this article and the carrying out of its purpose and duties shall be considered and held to be, and are hereby determined to be, essential governmental functions and for a public purpose. The council is created under the Department of Commerce for administrative, personnel and technical support services only.
(b) The council shall consist of eleven voting members, designated as follows:
(1) The Governor or his or her designee;
(2) The Secretary of Commerce or his or her designee;
(3) The Secretary of Administration or his or her designee;
(4) The Director of Homeland Security and Emergency Management or his or her designee; and
(5) Seven public members that serve at the will and pleasure of the Governor and are appointed by the Governor with the advice and consent of the Senate, as follows:
(i) One member representing employees of communications and cable providers, who shall be a member or representative of a union representing communications workers;
(ii) One member representing telecommunications providers who provide broadband services in this state;
(iii) One member representing cable operators who provide broadband services in this state;
(iv) One member representing broadband equipment or device manufacturers;
(v) One member representing higher education or secondary education; and
(vi) Two members representing the general public who are residents of the state: Provided, That one member represent rural communities: Provided, however, That both members may not reside in the same congressional district.
(6) In addition to the eleven voting members of the council, the President of the Senate shall name two senators from the West Virginia Senate and the Speaker of the House shall name two delegates from the West Virginia House of Delegates, each to serve in the capacity of an ex officio, non-voting advisory member of the council.
(c) The Secretary of Commerce or his or her designee shall chair the council and appoint one of the other council members to serve as vice chair. In the absence of the Secretary of Commerce or his or her designee, the vice chair shall serve as chair. The council shall appoint a secretary-treasurer who need not be a member of the council and who, among other tasks or functions designated by the council, shall keep records of its proceedings.
(d) The council may appoint committees or subcommittees to investigate and make recommendations to the full council. Members of these committees or subcommittees need not be members of the council.
(e) Six voting members of the council shall constitute a quorum and the affirmative vote of at least the majority of those members present shall be necessary for any action taken by vote of the council.
(f) The council is part-time. Public members appointed by the Governor may pursue and engage in another business or occupation or gainful employment. Any person employed by, owning an interest in, or otherwise associated with a broadband deployment project, project sponsor or project participant may serve as a council member and shall not be disqualified from serving as a council member because of a conflict of interest prohibited under section five, article two, chapter six-b of this code and shall not be subject to prosecution for violation of said section when the violation is created solely as a result of his or her relationship with the broadband deployment project, project sponsor or project participant: Provided, That the member recuses himself or herself from board participation regarding the conflicting issue in the manner set forth in legislative rules promulgated by the West Virginia Ethics Commission.
(g) No member of the council who serves by virtue of his or her office shall receive any compensation or reimbursement of expenses for serving as a member. The public members and members of any committees or subcommittees are entitled to be reimbursed for actual and necessary expenses incurred for each day or portion thereof engaged in the discharge of his or her official duties in a manner consistent with the guidelines of the Travel Management Office of the Department of Administration.

§31-15C-4. Powers and duties of the council generally.

(a) In addition to the powers set forth elsewhere in this article, the council is hereby granted, has and may exercise all powers necessary or appropriate to carry out and effectuate the purpose and intent of this article. The council shall have the power and capacity to:
(1) Provide consultation services to project sponsors in connection with the planning, acquisition, improvement, construction or development of any broadband deployment project;
(2) To make and execute contracts, commitments and other agreements necessary or convenient for the exercise of its powers, including but not limited to the hiring of consultants to assist in the mapping of the state, categorization of areas within the state, and evaluation of project applications: Provided, That the provisions of article three, chapter five-a of this code do not apply to the agreements and contracts executed under the provisions of this article;
(3) Acquire by gift or purchase, hold or dispose of real property and personal property in the exercise of its powers and performance of its duties as set forth in this article;
(4) Receive and dispense funds appropriated for its use by the Legislature or other funding sources or solicit, apply for and receive any funds, property or services from any person, governmental agency or organization to carry out its statutory duties; and
(5) Perform any and all other activities in furtherance of its purpose.
(b) The council shall exercise its powers and authority to bring broadband service to unserved areas. The council may not duplicate or displace broadband service in areas already served or where private industry feasibly can be expected to offer services in the reasonably foreseeable future.

§31-15C-5. Creation of the Broadband Deployment Fund.

All moneys collected by the council, which may, in addition to appropriations, include gifts, bequests or donations, shall be deposited in a special revenue account in the State Treasury known as the Broadband Deployment Fund. The fund shall be administered by and under the control of the council. Expenditures from the fund shall be for the purposes set forth in this article and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article two, chapter eleven-b of this code: Provided, That for the fiscal year ending the thirtieth day of June, two thousand nine, expenditures are authorized from collections rather than pursuant to appropriations by the Legislature.

§31-15C-6. Categorization of areas within state for broadband deployment purposes.

Based on its analysis of mapping, broadband demand, and other relevant data, the council shall designate unserved areas of the state as being one of three distinct types. These types are as follows:
(1) Type 1 unserved area: an area in which broadband may be deployed by service providers in an economically feasible manner;
2) Type 2 unserved area: an unserved area in which broadband may be deployed by broadband service providers and other entities in an economically feasible manner, provided some form of public moneys is made available; and
(3) Type 3 unserved area: an unserved area in which, at present, cable or wireline broadband cannot be deployed in an economically feasible manner and an intermodal approach employing other technologies, such as satellite and wireless, is required to provide that area with high-speed internet access.
§31-15C-7. Retention of outside expert consultant.
In order to assist the council with the highly technical task of categorizing the areas of the state and evaluating and prioritizing projects, the council may retain an outside expert consultant or consultants qualified to map the state on the basis of broadband availability, to evaluate, categorize and prioritize projects, to assist in public outreach and education in order to stimulate demand, to advise the council on the granting or denying of funding to projects, and to provide other support and assistance as necessary to accomplish the purposes of this article. The provisions of article three, chapter five-a of this code, shall not apply to the retention of an outside expert consultant pursuant to this section; Provided, that the council shall select the expert or experts by a competitive selection process.

§31-15C-8. Stimulation of demand through public outreach and education.

In order to implement and carry out the intent of this article, the council may take such actions as it deems necessary or advisable in order to stimulate demand through public outreach and education in unserved areas. The council shall consider the views, if offered, of affected members of the public, including private industry.

§31-15C-9. Development of guidelines and application for funding assistance; emergency rule-making authority.

(a) In order to implement and carry out the intent of this article in type 2 and type 3 unserved areas, the council shall promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code to develop comprehensive, uniform guidelines for use by the council in evaluating any request by a project sponsor for funding assistance to plan, acquire, construct, improve or otherwise develop a broadband deployment project in a type 2 or type 3 unserved area. The guidelines shall include the following factors: (1) The cost- effectiveness of the project; (2) the economic development benefits of the project; (3) the availability of alternative sources of funding that could help finance the project, including, but not limited to, private grants or federal funding and the efforts undertaken to obtain such funding; (4) if the project requires the construction of a network, the applicant's ability to operate and maintain such network; (5) the degree to which the project advances statewide broadband access and other state broadband planning goals; (6) the proposed technologies, bandwidths, upstream data rates and downstream data rates; (7) the estimated date the project would commence and be completed; (8) how the proposed project compares to alternative proposals for the same unserved area with regard to the number of people served, the amount of financial assistance sought, and the long-term viability of the proposed project; and (9) any other consideration the council deems pertinent.
b) Under no circumstances may the council's guidelines allow for the approval of any project for broadband service that does not include a minimum downstream transmission rate of 600 kilobits per second (Kbps) and a minimum downstream-to-upstream ratio of 8.5:1 for services with a downstream rate of up to five megabits per second (Mbps). In those cases where a project's broadband service's downstream rate is five Mbps or greater, the council's guidelines must require a minimum upstream data rate of 588 Kbps and allow information applications and market demands to dictate acceptable downstream-to-upstream data ratios.
c) The council shall create an application form that shall be used by all project sponsors requesting funding assistance from the council to plan, acquire, construct, improve or otherwise develop broadband deployment projects in type 2 or type 3 unserved areas. The application form shall contain all information required by all state agencies that will be required to issue permits and certificates regarding the project. The application shall require the project sponsor to set forth the proposed location of the project; the type(s) of unserved area(s) the project proposes to address, the estimated total cost of the project; the amount of funding assistance required and the specific uses of the funding; other sources of funding available or potentially available for the project; information demonstrating the need for the project; that the proposed funding of the project is the most economically feasible and viable alternative to completing the project; and such other information as the council considers necessary.
§31-15C-10. Requirements for project funding assistance; review of project application by council; competitive applications.

(a) Once the council has categorized unserved areas pursuant to section six of this article, project sponsors may submit applications for funding assistance for projects in those unserved areas. Upon receiving its first completed application for a categorized unserved area, the council shall post notice of such application with the Secretary of State for sixty days so as to allow for competing applications to be submitted to the council. Within thirty days of the close of the aforementioned sixty-day notice period, the council shall review all applications timely received during the sixty-day period and either (i) approve funding for one or more projects after determining that the funding would constitute an appropriate investment of public funds, or (ii) if the council determines that the application does not contain all of the required information or otherwise is incomplete, or that a proposed project is not eligible for funding assistance, or that the proposed project is otherwise not an appropriate or prudent investment of state funds, the council shall deny the project funding request. Prior to approving or denying any funding request, the council may seek the advice of any expert consultant retained pursuant to section seven of this article, but the council is not bound by that advice. The council shall also consider the views, if offered, of affected members of the public, including private industry.
(b) To apply for or receive any funding assistance for a broadband deployment project from the council pursuant to subsection (a) of this section, the project sponsor seeking the funding assistance shall submit a completed application to the council on the form prepared for such purpose by the council pursuant to section nine of this article.
(c) In reviewing each application, the council may use the engineering, financial and technical expertise of outside consultants in addition to the respective staffs of the government agencies and private-sector entities represented on the council or other government agencies.
(d) Notwithstanding any provision of article fifteen-a, chapter thirty-one or any other provision of this code, broadband deployment project proposals submitted to the council for its consideration pursuant to this article and the council's decisions with regard to such projects shall not be subject to review by the West Virginia Infrastructure and Jobs Development Council.
§31-15C-11. Required reporting by state entities.
(a) The secretary of administration shall submit a written report to the council by the thirty-first day of October of each year describing in detail the existing broadband infrastructure owned, leased, used, or operated by the state; broadband infrastructure purchased by the state; the demand for the infrastructure in the state; and whether or not that infrastructure is available to the public. If significant changes to any of the information submitted to the council occur, the secretary of administration shall submit a written update the council within sixty days of the change or in the next report, whichever date is sooner.
(b) The secretary of administration shall submit a written report to the council by the thirty-first day of October of each year describing in detail the state portal, any state services or programs that are available to the public on the state portal; the amount of usage of the portal; and efforts to create demand for the portal. If significant changes to any of the information submitted to the council occur, the secretary of administration shall submit a written update the council within sixty days of the change or in the next report, whichever date is sooner.
(c) The chancellor of the higher education policy commission shall submit a written report to the council by the thirty-first day of October of each year describing in detail the existing broadband infrastructure owned, leased, used, operated, or purchased by all public baccalaureate and graduate institutions in the state; all programs or initiatives designed to increase the usage of broadband and broadband based educational applications in the public baccalaureate and graduate institutions; and all training provided to instructors in the use of broadband and broadband based educational applications, If significant changes to any of the information submitted to the council occur, the chancellor of the higher education policy commission shall submit a written update to the council within sixty days of the change or in the next report, whichever date is sooner.
(d) The chancellor of the West Virginia Council for Community and Technical College Education shall submit a written report to the council by the thirty-first day of October of each year describing in detail the existing broadband infrastructure owned, leased, used, operated, or purchased by all public baccalaureate and graduate institutions in the state; all programs or initiatives designed to increase the usage of broadband and broadband based educational applications in the public baccalaureate and graduate institutions; and all training provided to instructors in the use of broadband and broadband based educational applications, If significant changes to any of the information submitted to the council occur, the chancellor of the West Virginia council for community and technical college education shall submit a written update the council within sixty days of the change or in the next report, whichever date is sooner.
(e) The state superintendent of schools shall submit a written report to the council by the thirty-first day of October of each year describing in detail the existing broadband infrastructure owned, leased, used, operated, or purchased by all state schools; all programs or initiatives designed to increase the usage of broadband and broadband based educational applications in the schools and in Pre-K and early childhood education programs; all training provided to teachers in the use of broadband and broadband based educational applications; the availability of an access to broadband in homes and families with children aged four years to eight years; estimates of the number of families with children aged four years to eight years who are using broadband in the homes; estimates of the ownership of computers in families with children aged four years to eight years; and any unmet demand for broadband infrastructure in state schools. If significant changes to any of the information submitted to the council occur, the state superintendent of schools shall submit a written update to the council within sixty days of the change or in the next report, whichever date is sooner.
(f) The chair of the West Virginia healthcare authority shall submit a written report to the council by The thirty-first day of October of each year describing in detail the existing broadband infrastructure owned, leased, used operated, or purchased by all hospitals, medical facilities, clinics, or healthcare providers; all programs, initiatives, or applications utilizing broadband that are promoted by hospitals, medical facilities, clinics, or healthcare providers; and any unmet demand for broadband by hospitals, medical facilities, clinics, or healthcare providers.
§31-15C-12. Limitation of liability.
No person is subject to antitrust or unfair competition liability based on membership or participation in the council, which provides an essential governmental function and enjoys state action immunity.

§31-15C-13. Protection of proprietary business information.

(a) Broadband deployment information provided to the council or its consultants and other agents, including but not limited to physical plant locations, subscriber levels, and market penetration data, constitutes proprietary business information and, along with any other information that constitutes trade secrets, shall be exempt from disclosure under the provisions of chapter twenty-nine-b of this code: Provided, That the information is identified as confidential information when submitted to the council.
(b) Trade secrets or proprietary business information obtained by the council from broadband providers and other persons or entities shall be secured and safeguarded by the state. Such information or data shall not be disclosed to the public or to any firm, individual or agency other than officials or authorized employees of the state. Any person who makes any unauthorized disclosure of such confidential information or data is guilty of a misdemeanor and, upon conviction thereof, may be fined not more than five thousand dollars or confined in a correctional facility for not more than one year, or both.
(c) The official charged with securing and safeguarding trade secrets and proprietary data for the council is the Secretary of Administration, who is authorized to establish and administer appropriate security measures. The council chair shall designate two additional persons to share the responsibility of securing trade secrets or proprietary information. No person will be allowed access to trade secrets or proprietary information without written approval of a minimum of two of the three authorized persons specified above.
§31-15C-14. Expiration of council.
The council shall continue to exist until the thirty-first day of December, two thousand eleven, unless sooner terminated, continued or reestablished pursuant to an Act of the Legislature.
On motion of Senator Unger, the following amendments to the Transportation and Infrastructure committee amendment to the bill (Eng. Com. Sub. for H. B. No. 4637), were reported by the Clerk, considered simultaneously, and adopted:
On page six, section three, subsection (c), by striking out the words "The Secretary of Commerce" and inserting in lieu thereof the words "The Governor";
And,
On page seven, section three, subsection (c), by striking out the words "of the Secretary of Commerce" and inserting in lieu thereof the words "of the Governor".
The question now being on the adoption of the Transportation and Infrastructure committee amendment to the bill, as amended, the same was put and prevailed.
The bill (Eng. Com. Sub. for H. B. No. 4637), as amended, was then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4637) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4637) passed.
The following amendment to the title of the bill, from the Committee on Transportation and Infrastructure, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4637--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §31-15C-1, §31-15C-2, §31-15C-3, §31-15C-4, §31-15C-5, §31-15C-6, §31-15C-7, §31-15C-8, §31-15C-9, §31-15C-10, §31-15C-11, §31-15C-12 and §31-15C-13, all relating to the deployment of broadband to the remaining unserved areas of the state; setting forth legislative findings and purpose; providing definitions; establishing the Broadband Deployment Council; establishing procedures for the council, and providing for administrative support; prescribing the powers, duties and responsibilities of the council generally; creating the Broadband Development Fund; categorizing areas of the state according to broadband access; authorizing the retention of an outside expert consultant or consultants to assist in categorization and other functions; providing for the stimulation of demand through public outreach and education; providing funding guidelines; granting emergency rulemaking authority; establishing project requirements for funding assistance; describing the procedures for submitting applications and reviewing applications; requiring public notice; requiring the submission of written reports by certain state agencies or officers; placing limits on liability for membership or participation in the council; protecting confidentiality of trade secrets and proprietary business information; creating the misdemeanor offense of making any unauthorized disclosure of confidential information and establishing the penalties therefor; and providing for the expiration of the council.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2967, Creating the "West Virginia Remembers Program".
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4018, Renewing the West Virginia Small Business Linked Deposit Program.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. House Bill No. 4038, Allowing the Division of Labor to promulgate Rules to license elevator workers.
On second reading, coming up in regular order, was read a second time.
On motion of Senator Barnes, the following amendment to the bill was reported by the Clerk:
On page fifteen by creating a new section fourteen that reads as follows: "Notwithstanding any other part of this code, all issues relating to elevator safety shall be under the jurisdiction of the West Virginia State Fire Marshal's Office and not the West Virginia Division of Labor".
The question being on the adoption of the amendment offered by Senator Barnes to the bill, the same was put and did not prevail.
The bill (Eng. H. B. No. 4038) was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 4041, Relating to the regulation and treatment of the production of natural gas and coalbed methane.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4088, Allowing farm equipment dealers to calculate their inventory based on an average of their yearly sales.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4092, Changing the requirements for licensure as a forester or forestry technician and giving the Board of Foresters rule-making authority.
Having been removed from the Senate second reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. Com. Sub. for House Bill No. 4290, Relating to electronic commerce.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4357, Extending the Neighborhood Investment Program Act and eligibility for tax credits under the act.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4407, Requiring automatic tire chains as standard equipment on all new school buses.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4472, Requiring a board of education to wait ten days before posting a new job opening following the death of an employee.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4474, Relating to registered nurses required in operating rooms.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. House Bill No. 4477, Relating to payment of GED exam fees.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4495, Limiting the use of the titles "registered nurse", "nurse practitioner", and "nurse" to certain qualified individuals.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4524, Relating generally to the ethical standards of public officers, employees and lobbyists.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4554, Testing school bus operators every other year.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. House Bill No. 4670, Authorizing the Public Employees Insurance Agency to charge interest to employers on amounts not paid on time.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. House Bill No. 4684, Amending the West Virginia Film Industry Investment Act.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
The end of today's second reading calendar having been reached, the Senate returned to the consideration of
Eng. House Bill No. 3201, Authorizing the tax commissioner to refuse, revoke, suspend or refuse to renew a business registration certificate for a business that is the alter ego, nominee or instrumentality of a business in certain situations.
On third reading, coming up in deferred order, was again reported by the Clerk.
At the request of Senator Kessler, unanimous consent was granted to offer an amendment to the bill on third reading.
Thereupon, on motion of Senator Kessler, the following amendment to the bill was reported by the Clerk and adopted:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto two new sections, designated §11-10-5z and §11-10-7d; that §11-12-5 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §11-15-9j; that §11-15-16 of said code be amended and reenacted; and that §11-21-74 of said code be amended and reenacted, all to read as follows:
ARTICLE 10. WEST VIRGINIA TAX PROCEDURE AND ADMINISTRATION ACT.
§11-10-5z. Electronic filing for certain persons.
(a) For tax years beginning on or after the first day of January, two thousand nine, any person required to file a return for a tax administered under the provisions of this article and who had total annual remittance for any single tax equal to or greater than one hundred thousand dollars during the immediately preceding taxable year shall file electronically all returns for all taxes administered under this article.
(b) The Tax Commissioner shall implement the provisions of this section using any combination of notices, forms, instructions and rules that he or she determines necessary. All rules shall be promulgated pursuant to article three, chapter twenty-nine-a of this code.
§11-10-7d. Combining assessments.
(a) The Tax Commissioner may, subsequent to any investigation authorized by subsection (a), section seven of this article that results in an assessment in each of two or more taxes administered pursuant to this article, combine those assessments into a combined single assessment. In order to complete any investigation, the Tax Commissioner may review and combine returns for the taxes that are the subject of the investigation.
(b) If the Tax Commissioner has combined two or more returns as authorized by subsection (a) of this section, the tax remitted shall be applied against taxes in the order provided in a rule promulgated by the Tax Commissioner under the authority of article three, chapter twenty-nine-a of this code.
(c) If the Tax Commissioner issues a combined single assessment as authorized in subsection (a) of this section, the limitations on assessment provided in section fifteen of this article shall apply separately to each tax liability included in the single assessment.
(d) If the Tax Commissioner issues a single assessment as authorized in subsection (a) of this section and the assessment becomes final pursuant to the provisions of section eight of this article, the Tax Commissioner is authorized to pursue collection of the tax resulting from the combined assessment as authorized by this article, including, but not limited to, sections eleven and thirteen of this article, and to record one lien, pursuant to section twelve of this article, that includes all unpaid amounts of all finalized tax liabilities included in that combined assessment.
ARTICLE 12. BUSINESS REGISTRATION TAX.

§11-12-5. Time for which registration certificate granted; power of Tax Commissioner to suspend or cancel certificate; certificate to be permanent until cessation of business for which certificates are granted or revocation, suspension or cancellation by the Tax Commissioner; penalty for involuntary loss of license due to failure to pay required fees and taxes relating to business.

(a) Registration period. -- All business registration certificates issued under the provisions of section four of this article are for the period of one year beginning the first day of July and ending the thirtieth day of the following June: Provided, That beginning on or after the first day of July, one thousand nine hundred ninety-nine, all business registration certificates issued under the provisions of section four of this article shall be issued for two fiscal years of this state, subject to the following transition rule. If the first year for which a business was issued a business registration certificate under this article began on the first day of July of an even-numbered calendar year, then the Tax Commissioner may issue a renewal certificate to that business for the period beginning the first day of July, one thousand nine hundred ninety-nine, and ending the thirtieth day of June, two thousand, upon receipt of fifteen dollars for each such one-year certificate. ~~Thereafter, only certificates covering two fiscal years of this state shall be issued.~~ Notwithstanding any other provisions of this code to the contrary, any certificate of registration granted on or after the first day of July, two thousand ten, shall not be subject to the foregoing requirement that it be renewed, but shall be permanent until cessation of the business for which the certificate of registration was granted or until it is suspended, revoked or cancelled by the Tax Commissioner. Notwithstanding any provision of this code to the contrary, on or after the first day of July, two thousand ten, reference to renewal of the business registration certificate shall refer to the issuance of a new business registration certificate pursuant to expiration, cancellation or revocation of a prior business registration certificate or to reinstatement of a business registration certificate or to reinstatement of a business certificate previously suspended by the Tax Commissioner. On or after the first day of July, two thousand ten, the business registration certificate shall be issued upon payment of a tax of thirty dollars to the Tax Commissioner for new issuances of the business registration certificate or for issuances of the business registration certificate pursuant to expiration, cancellation or revocation of a prior business registration certificate or for reinstatement of a business registration certificate previously suspended by the Tax Commissioner, along with any applicable delinquent fees, interest, penalties and additions to tax.
(b) Revocation or suspension of certificate. --
(1) The Tax Commissioner may cancel or suspend a business registration certificate at any time during a registration period if:
(A) The registrant filed an application for a business registration certificate, or an application for renewal thereof, ~~for the registration period~~ that was false or fraudulent.
(B) The registrant willfully refused or neglected to file a tax return or to report information required by the Tax Commissioner for any tax imposed by or pursuant to this chapter.
(C) The registrant willfully refused or neglected to pay any tax, additions to tax, penalties or interest, or any part thereof, when they became due and payable under this chapter, determined with regard to any authorized extension of time for payment.
(D) The registrant neglected to pay over to the Tax Commissioner on or before its due date, determined with regard to any authorized extension of time for payment, any tax imposed by this chapter which the registrant collects from any person and holds in trust for this state.
(E) The registrant abused the privilege afforded to it by article fifteen or fifteen-a of this chapter to be exempt from payment of the taxes imposed by such articles on some or all of the registrant's purchases for use in business upon issuing to the vendor a properly executed exemption certificate, by failing to timely pay use tax on taxable purchase for use in business or by failing to either pay the tax or give a properly executed exemption certificate to the vendor.
(F) The registrant has failed to pay in full delinquent personal property taxes owing for the calendar year. ~~immediately preceding the calendar year in which the application is made.~~
(2) On or after the first day of July, two thousand ten, a prospective registrant or a former registrant for which a business registration certificate has been suspended, cancelled or revoked pursuant to the provisions of this article may apply for a new business registration certificate or for reinstatement of a suspended business registration certificate upon payment of all outstanding delinquent fees, taxes, interest, additions to tax and penalties, in addition to payment to the Tax Commissioner of a penalty in the amount of one hundred dollars. The Tax Commissioner may issue a new business registration certificate or reinstate a suspended business registration certificate if the prospective or former registrant has provided security acceptable to and authorized by the Tax Commissioner, payable to the Tax Commissioner, sufficient to secure all delinquent fees, taxes, interest, additions to tax and penalties owed by the prospective registrant. The Tax Commissioner may issue a new business registration certificate or reinstate a suspended business registration certificate if the prospective or former registrant has entered into a payment plan approved by the Tax Commissioner by which liability for all delinquent fees, taxes, interest, additions to tax and penalties will be paid in due course and without significant delay. Failure of any registrant to comply with a payment plan pursuant to this provision shall be grounds for immediate suspension or revocation of the registrant's business registration certificate.
(3) On and after the first day of July, two thousand ten, a prospective registrant or a former registrant for which a business registration certificate has been suspended, cancelled or revoked pursuant to the provisions of any article of this code other than this article may apply for a new business registration certificate or for reinstatement of a suspended business registration certificate, only if the prospective or former registrant has complied with all applicable statutory and regulatory requirements for renewal, issuance or reinstatement of the business registration certificate and upon payment to the Tax Commissioner of a penalty in the amount of one hundred dollars.
~~(2)~~ (4) ~~Before~~ Except pursuant to exceptions specified in this code, before canceling, revoking or suspending any business registration certificate, the Tax Commissioner shall give written notice of his or her intent to suspend, revoke or cancel the business registration certificate of the taxpayer, the reason for the suspension, revocation or cancellation, the effective date of the cancellation, revocation or suspension and the date, time and place where the taxpayer may appear and show cause why such business registration certificate should not be canceled, revoked or suspended. This written notice shall be served on the taxpayer in the same manner as a notice of assessment is served under article ten of this chapter, not less than twenty days prior to the effective date of the cancellation, revocation or suspension. ~~date of the show cause informal hearing.~~ The taxpayer may appeal cancellation, revocation or suspension of its business registration certificate in the same manner as a notice of assessment is appealed under article ten-a of this chapter. ~~Provided,~~ ~~That the~~ The filing of a petition for appeal does not stay the effective date of the suspension, revocation or cancellation. A stay may be granted only after a hearing is held on a motion to stay filed by the registrant upon finding that state revenues will not be jeopardized by the granting of the stay. The Tax Commissioner may, in his or her discretion and upon such terms as he or she may specify, agree to stay the effective date of the cancellation, revocation or suspension until another date certain.
~~(3)~~ (5) On or before the first day of July, two thousand five, the Tax Commissioner shall propose for promulgation legislative rules establishing ancillary procedures for the Tax Commissioner's suspension of business registration certificates for failure to pay delinquent personal property taxes pursuant to paragraph (F), subdivision (1) of this section. The rules shall at a minimum establish any additional requirements for the provision of notice deemed necessary by the Tax Commissioner to meet requirements of law; establish protocols for the communication and verification of information exchanged between the Tax Commissioner, sheriffs and others; and establish fees to be assessed against delinquent taxpayers that shall be deposited into a special fund which is hereby created and expended for general tax administration by the Tax Division of the Department of Tax and Revenue and for operation of the Tax Division. Upon authorization of the Legislature, the rules shall have the same force and effect as if set forth herein. No provision of this subdivision may be construed to restrict in any manner the authority of the Tax Commissioner to suspend such certificates for failure to pay delinquent personal property taxes under paragraph (C) or (F), subdivision (1) of this section or under any other provision of this code prior to the authorization of the rules.
(c) Refusal to renew. -- The Tax Commissioner may refuse to issue or renew a business registration certificate if the registrant is delinquent in the payment of any tax administered by the Tax Commissioner under article ten of this chapter or the corporate license tax imposed by article twelve-c of this chapter, until the registrant pays in full all the delinquent taxes including interest and applicable additions to tax and penalties. In his or her discretion and upon ~~such~~ terms as he or she ~~may specify~~ specifies, the Tax Commissioner may enter into an installment payment agreement with the taxpayer in lieu of the complete payment. Failure of the taxpayer to fully comply with the terms of the installment payment agreement shall render the amount remaining due thereunder immediately due and payable and the Tax Commissioner may suspend or cancel the business registration certificate in the manner provided in this section.
(d) Refusal to renew due to delinquent personal property tax. -- The Tax Commissioner shall refuse to issue or renew a business registration certificate when informed in writing, signed by the county sheriff, that personal property owned by the applicant and used in conjunction with the business activity of the applicant is subject to delinquent property taxes. The Tax Commissioner shall forthwith notify the applicant that the commissioner will not act upon the application until information is provided evidencing that the taxes due are either exonerated or paid.
(e) Refusal to issue, revocation, suspension and refusal to renew business registration certificate of alter ego, nominee or instrumentality of a business that has previously been the subject of a lawful refusal to issue, revocation, suspension or refuse to renew. --
(1) The tax commissioner may refuse to issue a business registration certificate, or may revoke a business registration certificate or may suspend a business registration certificate or may refuse to renew a business registration certificate for any business determined by the tax commissioner to be an alter ego, nominee or instrumentality of a business that has previously been the subject of a lawful refusal to issue a business registration certificate or of a lawful revocation, suspension or refusal to renew a business registration certificate pursuant to this section, and for which the business registration certificate has not been lawfully reinstated or reissued.
(2) For purposes of this section, a business is presumed to be an alter ego, nominee or instrumentality of another business or other businesses if:
(A) More than twenty percent of the real assets or more than twenty percent of the operating assets or more than twenty percent of the tangible personal property of one business are or have been transferred to the other business or businesses, or are or have been used in the operations of the other business or businesses, or more than twenty percent of the real assets or more than twenty percent of the operating assets or more than twenty percent of the tangible personal property of one business are or have been used to collateralize or secure debts or obligations of the other business or businesses;
(B) Ownership of the businesses is so configured that the attribution rules of either Internal Revenue Code section 267 or Internal Revenue Code section 318 would apply to cause ownership of the businesses to be attributed to the same person or entity; or
(C) Substantive control of the businesses is held or retained by the same person, entity or individual, directly or indirectly, or through attribution under paragraph (B) of this subdivision.
ARTICLE 15. CONSUMERS SALES AND SERVICE TAX.
§11-15-9j. Direct pay permits for health care providers.
Any person having a right or claim to any exemption set forth in section nine-i of this article shall first pay to the vendor the tax imposed by this article and then apply to the Tax Commissioner for a refund or credit or, as provided in section nine-d of this article and section three-d of article fifteen-a of this chapter, give to the vendor his or her West Virginia direct pay permit number.

§11-15-16. Tax return and payment; exception; requiring a combined return.

(a) Payment of tax. -- Subject to the exceptions set forth in subsection (b) of this section, the taxes levied by this article are due and payable in monthly installments, on or before the twentieth day of the month next succeeding the month in which the tax accrued, except as otherwise provided in this article.
(b) Combined return required. --
(1) The Tax Commissioner shall, no later than the fifteenth day of June, two thousand eight, design a return that combines filing of the taxes levied by this article and article fifteen-a of this chapter.
(2) Beginning the first day of July, two thousand eight, each person required to file a return required by this article or article fifteen-a of this chapter, or both this article and article fifteen-a of this chapter, shall complete and file the return required by the Tax Commissioner.
(3) The Tax Commissioner may promulgate rules pursuant to article three, chapter twenty-nine-a of this code and otherwise use any combination of notices, forms and instructions he or she determines necessary to implement the use of the form required by subsection (c) of this section.
~~(b)~~ (c) Tax return. -- The taxpayer shall, on or before the twentieth day of each month, make out and mail to the Tax Commissioner a return for the preceding month, in the form prescribed by the Tax Commissioner, showing:
(1) The total gross proceeds of the vendor's business for the preceding month;
(2) The gross proceeds of the vendor's business upon which the tax is based;
(3) The amount of the tax for which the vendor is liable; and
(4) Any further information necessary in the computation and collection of the tax which the Tax Commissioner may require, except as otherwise provided in this article or article fifteen-b of this chapter.
~~(c)~~ (d) Remittance to accompany return. -- Except as otherwise provided in this article or article fifteen-b of this chapter, a remittance for the amount of the tax shall accompany the return.
~~(d)~~ (e) Deposit of collected tax. -- Tax collected by the Tax Commissioner shall be deposited as provided in section thirty of this article, except that:
(1) Tax collected on sales of gasoline and special fuel shall be deposited in the state road fund; and
(2) Any sales tax collected by the Alcohol Beverage Control Commissioner from persons or organizations licensed under authority of article seven, chapter sixty of this code shall be paid into a revolving fund account in the State Treasury, designated the Drunk Driving Prevention Fund, to be administered by the commission on drunk driving prevention, subject to appropriations by the Legislature.
~~(e)~~ (f) Return to be signed. -- A return shall be signed by the taxpayer or the taxpayer's duly authorized agent, when a paper return is prepared and filed. When the return is filed electronically, the return shall include the digital mark or digital signature, as defined in article three, chapter thirty-nine-a of this code, or the personal identification number of the taxpayer, or the taxpayer's duly authorized agent, made in accordance with any procedural rule that may be promulgated by the Tax Commissioner.
~~(f)~~ (g) Accelerated payment. --
(1) Taxpayers whose average monthly payment of the taxes levied by this article and article fifteen-a of this chapter during the previous calendar year exceeds one hundred thousand dollars, shall remit the tax attributable to the first fifteen days of June each year on or before the twentieth day of June: Provided, That on and after the first day of June, two thousand seven, the provisions of this subsection that require the accelerated payment on or before the twentieth day of June of the tax imposed by this article and article fifteen-a of this chapter are no longer effective and any such tax due and owing shall be payable in accordance with subsection (a) of this section.
(2) For purposes of complying with subdivision (1) of this subsection, the taxpayer shall remit an amount equal to the amount of tax imposed by this article and article fifteen-a of this chapter on actual taxable sales of tangible personal property and custom software and sales of taxable services during the first fifteen days of June or, at the taxpayer's election, the taxpayer may remit an amount equal to fifty percent of the taxpayer's liability for tax under this article on taxable sales of tangible personal property and custom software and sales of taxable services made during the preceding month of May.
(3) For a business which has not been in existence for a full calendar year, the total tax due from the business during the prior calendar year shall be divided by the number of months, including fractions of a month, that it was in business during the prior calendar year; and if that amount exceeds one hundred thousand dollars, the tax attributable to the first fifteen days of June each year shall be remitted on or before the twentieth day of June as provided in subdivision (2) of this subsection.
(4) When a taxpayer required to make an advanced payment of tax under subdivision (1) of this subsection makes out its return for the month of June, which is due on the twentieth day of July, the taxpayer may claim as a credit against liability under this article for tax on taxable transactions during the month of June the amount of the advanced payment of tax made under subdivision (1) of this subsection.
ARTICLE 21. PERSONAL INCOME TAX.
Part I. General.

§11-21-74. Filing of employer's withholding return and payment of withheld taxes; annual reconciliation; e-filing required for certain tax preparers and employers.

(a) General. -- Every employer required to deduct and withhold tax under this article shall, for each calendar quarter, on or before the last day of the month following the close of ~~such~~ the calendar quarter, file a withholding return as prescribed by the Tax Commissioner and pay over to the Tax Commissioner the taxes so required to be deducted and withheld. Where the average quarterly amount so deducted and withheld by any employer is less than one hundred fifty dollars and the aggregate for the calendar year can reasonably be expected to be less than six hundred dollars, the Tax Commissioner may by regulation permit an employer to file an annual return and pay over to the Tax Commissioner the taxes deducted and withheld on or before the last day of the month following the close of the calendar year. ~~Provided,~~ ~~That the~~ The Tax Commissioner may, by nonemergency legislative rules promulgated pursuant to article three, chapter twenty-nine-a of this code, change the minimum amounts established by this subsection. The Tax Commissioner may, if he or she ~~believes such action~~ determines necessary for the protection of the revenues, require any employer to make the return and pay to him or her the tax deducted and withheld at any time or from time to time. Notwithstanding the provisions of this subsection, on or after the first day of January, two thousand nine, every employer required to deduct and withhold tax under this article shall file a withholding return as prescribed by the Tax Commissioner and pay over to the Tax Commissioner the taxes required to be deducted and withheld, in accordance with the procedures established by the Internal Revenue Service pursuant to section 3402 of the Internal Revenue Code.
(b) Monthly returns and payments of withheld tax on and after the first day of January, two thousand one. -- Notwithstanding the provisions of subsection (a) of this section, on and after the first day of January, two thousand one, every employer required to deduct and withhold tax under this article shall, for each of the first eleven months of the calendar year, on or before the twentieth day of the succeeding month and for the last calendar month of the year, on or before the last day of the succeeding month, file a withholding return as prescribed by the Tax Commissioner and pay over to the Tax Commissioner the taxes so required to be deducted and withheld, if ~~such~~ the withheld taxes aggregate two hundred fifty dollars or more for the month, except any employer with respect to whom the Tax Commissioner may have by regulation provided otherwise in accordance with the provisions of subsection (a) of this section. Notwithstanding the provisions of this subsection, on and after the first day of January, two thousand nine, every employer required to deduct and withhold tax under this article shall file a withholding return as prescribed by the Tax Commissioner and pay over to the Tax Commissioner the taxes required to be deducted and withheld. The due dates for returns and payments shall be established by the Tax Commissioner to match as closely as practicable the due dates in effect for federal income tax purposes, in accordance with the procedures established by the Internal Revenue Service pursuant to Section 3402 of the Internal Revenue Code.
(c) Annual returns and payments of withheld tax of certain domestic and household employees. -- Employers of domestic and household employees whose withholdings of federal income tax are annually paid and reported by the employer pursuant to the filing of Schedule H of federal form 1040, 1040A, 1040NR, 1040NR-EZ, 1040SS or 1041 may, on or before the thirty-first day of January next succeeding the end of the calendar year for which withholdings are deducted and withheld, file an annual withholding return with the Tax Commissioner and annually remit to the Tax Commissioner West Virginia personal income taxes deducted and withheld for the employees. The Tax Commissioner may promulgate legislative or other rules pursuant to article three, chapter twenty-nine-a of this code for implementation of this subsection. Notwithstanding the provisions of this subsection, on or after the first day of January, two thousand nine, every employer required to deduct and withhold tax under this article shall file a withholding return as prescribed by the Tax Commissioner and pay over to the Tax Commissioner the taxes required to be deducted and withheld. The due dates for annual returns and payments shall be established by the Tax Commissioner to match as closely as practicable the due dates in effect for federal income tax purposes in accordance with the procedures established by the Internal Revenue Service pursuant to Section 3402 of the Internal Revenue Code.
(d) Deposit in trust for Tax Commissioner. -- Whenever any employer fails to collect, truthfully account for or pay over the tax, or to make returns of the tax as required in this section, the Tax Commissioner may serve a notice requiring the employer to collect the taxes which become collectible after service of the notice, to deposit the taxes in a bank approved by the Tax Commissioner, in a separate account, in trust for and payable to the Tax Commissioner and to keep the amount of the tax in the separate account until payment over to the Tax Commissioner. The notice shall remain in effect until a notice of cancellation is served by the Tax Commissioner.
(e) Accelerated payment. -- (1) Notwithstanding the provisions of subsections (a) and (b) of this section, for calendar years beginning after the thirty-first day of December, one thousand nine hundred ninety, every employer required to deduct and withhold tax whose average payment per calendar month for the preceding calendar year under subsection (b) of this section exceeded one hundred thousand dollars shall remit the tax attributable to the first fifteen days of June each year on or before the twenty-third day of June: Provided, That on and after the first day of June, two thousand seven, the provisions of this subsection that require the accelerated payment on or before the twenty-third day of June of the tax imposed by this article are no longer effective and any ~~such~~ tax due and owing shall be payable in accordance with subsection (a) of this section.
(2) For purposes of complying with subdivision (1) of this subsection, the employer shall remit an amount equal to the withholding tax due under this article on employee compensation subject to withholding tax payable or paid to employees for the first fifteen days of June or, at the employer's election, the employer may remit an amount equal to fifty percent of the employer's liability for withholding tax under this article on compensation payable or paid to employees for the preceding month of May.
(3) For an employer which has not been in business for a full calendar year, the total amount the employer was required to deduct and withhold under subsection (b) of this section for the prior calendar year shall be divided by the number of months, including fractions of a month, that it was in business during the prior calendar year and if that amount exceeds one hundred thousand dollars, the employer shall remit the tax attributable to the first fifteen days of June each year on or before the twenty-third day of June, as provided in subdivision (2) of this subsection.
(4) When an employer required to make an advanced payment of withholding tax under subdivision (1) of this subsection makes out its return for the month of June, which is due on the twentieth day of July, that employer may claim as a credit against its liability under this article for tax on employee compensation paid or payable for employee services rendered during the month of June the amount of the advanced payment of tax made under subdivision (1) of this subsection.
(f) The amendments to this section enacted in the year two thousand six are effective for tax years beginning on or after the first day of January, two thousand six.
(g) An annual reconciliation of West Virginia personal income tax withheld shall be submitted by the employer on or before the twenty-eighth day of February following the close of the calendar year, together with Tax Division copies of all withholding tax statements for that preceding calendar year. The reconciliation shall be accompanied by a list of the amounts of income withheld for each employee in such form as the Tax Commissioner prescribes and shall be filed separately from the employer's monthly or quarterly return.
(h) Any employer required to file a withholding return for two hundred fifty or more employees shall file its return using electronic filing as defined in section fifty-four of this article. An employer that is required to file electronically but does not do so is subject to a penalty in the amount of twenty-five dollars per employee for whom the return was not filed electronically, unless the employer shows that the failure is due to reasonable cause and not due to willful neglect.
The bill, as just amended, was ordered to third reading.
Having been engrossed, the bill (Eng. H. B. No. 3201) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 3201) passed.
On motion of Senator Kessler, the following amendment to the title of the bill was reported by the Clerk and adopted:
Eng. House Bill No. 3201--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto two new sections, designated §11-10-5z and §11-10-7d; to amend and reenact §11-12-5 of said code; to amend said code by adding thereto a new section, designated §11-15-9j; to amend and reenact §11-15-16 of said code; and to amend and reenact §11-21-74 of said code, all relating to tax administration efficiency and technical advancements; requiring electronic filing of tax returns when the taxpayer meets a certain threshold amount of taxes due; authorizing combined tax assessments; authorizing promulgation of rules to determine the application of partial payments of taxes; authorizing the limitation on assessments to apply separately to each tax in a combined assessment; authorizing the recordation of one lien for all taxes in a combined assessment; prohibiting filing incomplete business registration certificate; specifying the time period for which the business registration certificate is granted; specifying authority of the Tax Commissioner to suspend or cancel certificate; eliminating the periodic biennial business registration certificate renewal requirement; specifying a penalty applied upon issuance, renewal or reinstatement of the business registration certificate pursuant to involuntary cancellation, revocation or suspension of the business registration certificate; prohibiting filing incomplete returns for consumers sales and service tax and use tax; authorizing the tax commissioner to refuse, revoke, suspend or refuse to renew a business registration certificate for a business that is the alter ego, nominee or instrumentality of a business in certain situations; and defining alter ego; allowing assertion of the consumers sales and use tax exemptions authorized under section nine-i, article fifteen, chapter eleven of the Code of West Virginia to be asserted by use of a direct pay permit; requiring the Tax Commissioner to design a combined reporting form; requiring taxpayers to use the form specified by the Tax Commissioner; authorizing the Tax Commissioner to promulgate necessary rules; and prohibiting filing incomplete filing of withholding tax returns.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. No. 3201) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Action as to Engrossed House Bill No. 3201 having been concluded, the Senate proceeded to the consideration of
Eng. Com. Sub. for House Bill No. 4021, Revising mining safety equipment requirements and enhancing penalties for crimes against mining property.
On second reading, coming up in deferred order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §22A-2-6 of the Code of West Virginia, 1931, as amended, be amended and reenacted; §22A-2-55 of said code be amended and reenacted; and that §61-3-12 and §61-3-29 of said code be amended and reenacted, all to read as follows:
CHAPTER 22A. MINERS' HEALTH, SAFETY AND TRAINING.
ARTICLE 2. UNDERGROUND MINES.

§22A-2-6. Movement of mining equipment.

(a) Mining equipment being transported or trammed underground, other than ordinary sectional movements, shall be transported or trammed by qualified personnel under the supervision of a certified foreman. When equipment is being transported or trammed, no person shall be permitted to be inby the equipment in the ventilating split that is passing over such equipment. To avoid accidental contact with power lines, face equipment shall be insulated and assemblies removed, if necessary, so as to provide clearance.
(b) The task force shall, upon the effective date of the amendments to this section made during the two-thousand eight Regular Session of the West Virginia Legislature, undertake a study of methods and technologies available related to transporting miners, mining equipment and supplies in underground mines.
(c) Upon completion of the study directed by the provisions of subsection (b) of this section, the task force may present recommendations to the West Virginia Board of Coal Mine Health and Safety designed to improve the safety and efficiency of underground mines transportation systems. The board may upon the consideration of any such task force recommendations, promulgate rules governing the movement of mining equipment within coal mines in the State of West Virginia.
(d) The rules governing the movement of Mining Equipment within Coal Mines in the State of West Virginia (CSR36-4) as modified by the circuit court of Kanawha County, West Virginia in civil action 79-2723 and practices as approved by the director as of the first day of February two-thousand eight shall remain in full force and effect until modified by any rules promulgated pursuant to subsection (c) of this section.
§22A-2-55. Protective equipment and clothing.
(a) Welders and helpers shall use proper shields or goggles to protect their eyes. All employees shall have approved goggles or shields and use the same where there is a hazard from flying particles or other eye hazards.
(b) Employees engaged in haulage operations and all other persons employed around moving equipment on the surface and underground shall wear snug-fitting clothing.
(c) Protective gloves shall be worn when material which may injure hands is handled, but gloves with gauntleted cuffs shall not be worn around moving equipment.
(d) Safety hats and safety-toed shoes shall be worn by all persons while in or around a mine: Provided, That metatarsal guards are not required to be worn by persons when working in those areas of underground mine workings which average less than forty-eight inches in height as measured from the floor to the roof of the underground mine workings.
(e) Approved eye protection shall be worn by all persons while being transported in open-type man trips.
(f)(1) A self-contained self-rescue device approved by the director shall be worn by each person underground or kept within his immediate reach and the device shall be provided by the operator. The self-contained self-rescue device shall be adequate to protect a miner for one hour or longer. Each operator shall train each miner in the use of such device and refresher training courses for all underground employees shall be held during each calendar year.
(2) In addition to the requirements of subdivision (1) of this subsection, the operator shall also provide caches of additional self-contained self-rescue devices throughout the mine in accordance with a plan approved by the director. Each additional self-contained self-rescue device shall be adequate to protect a miner for one hour or longer. The total number of additional self-contained self-rescue devices, the total number of storage caches and the placement of each cache throughout the mine shall be established by rule pursuant to subsection (i) of this section. ~~Intrinsically safe battery-powered strobe lights shall be affixed to each cache and shall be capable of automatic activation in the event of an emergency.~~ A luminescent sign with the words "SELF-CONTAINED SELF-RESCUER" or "SELF-CONTAINED SELF-RESCUERS" shall be conspicuously posted at each cache and luminescent direction signs shall be posted leading to each cache. Lifeline cords or other similar device, with reflective material at twenty-five foot intervals, shall be attached to each cache from the last open crosscut to the surface. The operator shall conduct weekly inspections of each cache ~~the affixed strobe lights~~ and each lifeline cord or other similar device to ensure operability.
(3) Any person that, without the authorization of the operator or the director, knowingly removes or attempts to remove any self-contained self-rescue device or ~~battery-powered strobe light~~ lifeline cord from the mine or mine site with the intent to permanently deprive the operator of the device or ~~light~~ lifeline cord or knowingly tampers with or attempts to tamper with such device or ~~light~~ lifeline cord shall be guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one year nor more than ten years or fined not less than ten thousand dollars nor more than one hundred thousand dollars, or both.
(g)(1) A wireless emergency communication device approved by the director and provided by the operator shall be worn by each person underground. The wireless emergency communication device shall, at a minimum, be capable of receiving emergency communications from the surface at any location throughout the mine. Each operator shall train each miner in the use of the device and provide refresher training courses for all underground employees during each calendar year. The operator shall install in or around the mine any and all equipment necessary to transmit emergency communications from the surface to each wireless emergency communication device at any location throughout the mine.
(2) Any person that, without the authorization of the operator or the director, knowingly removes or attempts to remove any wireless emergency communication device or related equipment, from the mine or mine site with the intent to permanently deprive the operator of the device or equipment or knowingly tampers with or attempts to tamper with the device or equipment shall be guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one year nor more than ten years or fined not less than ten thousand dollars nor more than one hundred thousand dollars, or both.
(h)(1) A wireless tracking device approved by the director and provided by the operator shall be worn by each person underground. In the event of an accident or other emergency, the tracking device shall, at a minimum, be capable of providing real-time monitoring of the physical location of each person underground: Provided, That no person shall discharge or discriminate against any miner based on information gathered by a wireless tracking device during nonemergency monitoring. Each operator shall train each miner in the use of the device and provide refresher training courses for all underground employees during each calendar year. The operator shall install in or around the mine all equipment necessary to provide real-time emergency monitoring of the physical location of each person underground.
(2) Any person that, without the authorization of the operator or the director, knowingly removes or attempts to remove any wireless tracking device or related equipment, approved by the director, from a mine or mine site with the intent to permanently deprive the operator of the device or equipment or knowingly tampers with or attempts to tamper with the device or equipment shall be guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one year nor more than ten years or fined not less than ten thousand dollars nor more than one hundred thousand dollars, or both.
(i) The director may promulgate emergency and legislative rules to implement and enforce this section pursuant to the provisions of article three, chapter twenty-nine-a of this code.
~~(j) The penalties set forth in this article enacted during the regular session of the Legislature in January, two thousand six, shall become effective the first day of July, two thousand six.~~
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 3. CRIMES AGAINST PROPERTY.

§61-3-12. Entry of building other than dwelling; entry of railroad, traction or motorcar, steamboat or other vessel; penalties; counts in indictment.

If any person shall, at any time, break and enter, or shall enter without breaking, any office, shop, underground coal mine, storehouse, warehouse, banking house, or any house or building, other than a dwelling house or outhouse adjoining thereto or occupied therewith, or any railroad or traction car, propelled by steam, electricity or otherwise, or any steamboat or other boat or vessel, within the jurisdiction of any county in this state, with intent to commit a felony or any larceny, he or she shall be deemed guilty of a felony, and, upon conviction, shall be confined in ~~the penitentiary~~ a state correctional facility not less than one nor more than ten years. And if any person shall, at any time, break and enter, or shall enter without breaking, any automobile, motorcar or bus, with like intent, within the jurisdiction of any county in this state, he shall be guilty of a misdemeanor, and, upon conviction, shall be confined in ~~the county~~ jail not less than two nor more than twelve months and be fined not exceeding one hundred dollars.
An indictment for burglary may contain one or more counts for breaking and entering, or for entering without breaking, the house or building mentioned in the count for burglary under the provisions of this and the preceding section.

§61-3-29. Damage or destruction of railroad or public utility company property, or real or personal property used for producing, generating, transmitting, distributing, treating or collecting electricity, natural gas, coal, water, wastewater, stormwater, telecommunications or cable service; penalties; restitution.

(a) Any person who knowingly and willfully damages or destroys any real or personal property owned by a railroad company, or public utility company, or any real or personal property used for producing, generating, transmitting, distributing, treating or collecting electricity, natural gas, coal, water, wastewater, stormwater, telecommunications or cable service, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than two thousand dollars, or confined in ~~the county or regional~~ jail not more than one year, or both.
(b) Any person who knowingly and willfully: (1) damages or destroys any real or personal property owned by a railroad company, or public utility company, or any real or personal property used for producing, generating, transmitting, distributing, treating or collecting electricity, natural gas, coal, water, wastewater, stormwater, telecommunications or cable service; ~~causing~~ and, (2) causes serious bodily injury to another is guilty of a felony and, upon conviction thereof, shall be fined not less than five thousand dollars nor more than fifty thousand dollars, or confined in a state correctional facility not less than one nor more than five years, or both.
(c) Nothing in this section may be construed to limit or restrict the ability of an entity referred to in subsection (a) or (b) of this section or a property owner or other person who has been damaged or injured as a result of a violation of this section from seeking recovery for damages arising from violation of this section.
On motion of Senator Kessler, the following amendment to the Judiciary committee amendment to the bill (Eng. Com. Sub. for H. B. No. 4021) was reported by the Clerk and adopted:
On page two, section six, lines eleven through seventeen, by striking out all of subsection (d) and inserting in lieu thereof the following:
(d) The current legislative rule 36CSR4, effective the nineteenth day of July, one thousand nine-hundred seventy-nine, relating to "Rules and Regulations Governing the Movement of Mining Equipment within Coal Mines in the State of West Virginia", is hereby limited and qualified as to its force and effect and shall only be read to be effective to the extent provided as follows:
To the extent that the rule permits the movement of major pieces of heavy mining equipment with men inby the equipment in the ventilating split that is passing over such equipment, to-wit, Section 4: applying the prohibition only to "transporting" and only "where energized D.C. powered trolley or feeder wires are present"; Sections 5.1, 9.1, 10.1, 12.1 and 13.1 to the extent that they involve transporting or tramming such equipment with men inby; Sections 6.1 and 6.2 only to the extent that such equipment is not designed by the manufacturer to operate on track; Section 7.1 only to the extent that such equipment exceeds the length or width of the mine car; and Section 11.1 only to the extent that such equipment in said Section exceeds the length, width or cargo carrying capacity of the unit being used to transport such equipment. Construction work and rehabilitation work are not prohibited except to the extent that such would involve the movement of major pieces of heavy mining equipment into the precise area where such work is to be performed, with men inby.
(e) The provisions of subsection (d) of this section, as enforced upon the first day of February, two thousand eight, shall remain in full force and effect until modified by any rules promulgated pursuant to subsection (c) of this section.
The question now being on the adoption of the Judiciary committee amendment to the bill, as amended, the same was put and prevailed.
The bill (Eng. Com. Sub. for H. B. No. 4021), as amended, was then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4021) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Bailey and Sharpe--2.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4021) passed.
The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4021--A Bill to amend and reenact §22A-2-6 of the Code of West Virginia, 1931, as amended; to amend and reenact §22A-2-55 of said code; and to amend and reenact §61-3-12 and §61-3-29 of said code, all relating generally to coal mine health and safety; clarifying currency of rules and policies relating to transportation of miners and supplies; directing the West Virginia Mine Safety Task Force study possible improvements in transportation of miners and supplies in underground coal mines; eliminating requirement that strobe lights be affixed to caches of self-contained self-rescue devices; expanding criminal penalties for theft of certain coal mine equipment; establishing criminal penalties for illegal entry into underground coal mines; creating a criminal penalty for damage or destruction of coal mine equipment and property; and creating a criminal penalty for damage or destruction of coal mine equipment and property when a serious bodily injury results.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
On motion of Senator, the Senate recessed for five minutes.
Night Session
Upon expiration of the recess, the Senate reconvened.
At the request of Senator Helmick, unanimous consent being granted, the Senate returned to the consideration of
Eng. Com. Sub. for House Bill No. 4307, Relating to bona fide residents wholly or solely owning greyhounds.
On second reading, having been reported from the Committee on Finance in earlier proceedings today.
At the request of Senator Helmick, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 4307) was taken up for immediate consideration and read a second time.
Under rule number forty-three of the Rules of the Senate, Senator Green was excused from voting on any matter pertaining to the bill.
The following amendments to the bill, from the Committee on the Judiciary, were reported by the Clerk, considered simultaneously, and adopted:
On page thirteen, section ten, line two hundred eight, after the word "start" by changing the period to a colon and inserting the following proviso: Provided, That those kennels who are required to race West Virginia Whelped Greyhounds on their active list that finish fifth through eighth shall receive one half point value from the regular purse fund per official start. The West Virginia Greyhound Owners and Breeders Association shall submit a list of any additions or deletions to the numbers of the registries during the first of each month.;
And,
On page fourteen, section ten, lines two hundred thirty-one and two hundred thirty-two, by striking out the words "and maintenance".
The bill (Eng. Com. Sub. for H. B. No. 4307), as amended, was then ordered to third reading.
At the request of Senator Helmick, unanimous consent being granted, the Senate returned to the consideration of
Eng. House Bill No. 4623, Relating to establishing minimum deductions.
On second reading, having been reported from the Committee on Finance in earlier proceedings today.
At the request of Senator Helmick, unanimous consent being granted, the bill (Eng. H. B. No. 4623) was taken up for immediate consideration and read a second time.
The following amendment to the bill, from the Committee on Education, was reported by the Clerk and adopted:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 23. ADDITIONAL POWERS, DUTIES AND RESPONSIBILITIES OF GOVERNING BOARDS OF STATE INSTITUTIONS OF HIGHER EDUCATION.

§18-23-4a. Supplemental and additional retirement plans for employees; payroll deductions; authority to match employee contributions; retroactive curative and technical corrective action.

(a) Any reference in this code to the "additional retirement plan" relating to state higher education employees, means the "higher education retirement plan" provided in this section. Any state higher education employee participating in a retirement plan upon the effective date of this section continues to participate in that plan and may not elect to participate in any other state retirement plan. Any ~~such~~ retirement plan continues to be governed by the provisions of law applicable on the effective date of this section.
(b) The Higher Education Policy Commission, on behalf of the governing boards, Council for Community and Technical College Education and itself, shall contract for a retirement plan for its employees, to be known as the "Higher Education Retirement Plan". The governing boards, Council for Community and Technical College Education and Higher Education Policy Commission shall make periodic deductions from the salary payments due the employees in the amount they are required to contribute to the Higher Education Retirement Plan, which deductions shall be six percent.
(c) The Higher Education Policy Commission, Council for Community and Technical College Education and the governing boards, ~~with policy commission approval,~~ may contract for a supplemental retirement ~~plan~~ plans for any or all of their employees to supplement the benefits the employees otherwise receive. The governing boards, Council for Community and Technical College Education and Higher Education Policy Commission may make additional periodic deductions from the salary payments due the employees in the amount they are required to contribute for the supplemental retirement plan.
(d) The Higher Education Policy Commission shall conduct a study of the feasibility of offering multiple vendors of retirement products and services to be offered for the benefit of higher education employees. The commission shall report the findings of the study, along with a plan for offering multiple vendors for the employees, to the Joint Committee on Pensions and Retirement no later than the first day of December, two thousand one. Upon approval by the Joint Committee on Pensions and Retirement, the commission shall provide a choice of vendors to their employees. Any selection of vendors made by the commission shall be determined according to a request for proposal issued pursuant to the provisions of section four, article five, chapter eighteen-b of this code.
(e) (d) Each governing board, the Council for Community and Technical College Education and the Higher Education Policy Commission, by way of additional compensation to their employees, shall pay an amount, which, at a minimum, ~~equal to~~ equals the contributions of the employees into the higher education retirement plan from funds appropriated to the board or commission for personal services.
(e) As part of an overall compensation plan, the Higher Education Policy Commission, the Council for Community and Technical College Education or an institutional governing board, each at its sole discretion, may increase its contributions to any employee retirement plan to an amount that exceeds the contributions of employees.
(f) Each participating employee has a full and immediate vested interest in the retirement and death benefits accrued from all the moneys paid into the Higher Education Retirement Plan or a supplemental retirement plan for his or her benefit. Upon proper requisition of a board, the Council for Community and Technical College Education or the Higher Education Policy Commission, the Auditor periodically shall ~~periodically~~ issue a warrant, payable as specified in the requisition, for the total contributions so withheld from the salaries of all participating employees and for the matching funds of the governing ~~board's~~ board, Council for Community and Technical College Education or Higher Education Policy ~~Commission's matching funds~~ Commission.
(g) Any person whose employment commences on or after the first day of July, one thousand nine hundred ninety-one, and who is eligible to participate in the Higher Education Retirement Plan, shall participate in that plan and is not eligible to participate in any other state retirement system: Provided, That the foregoing provision does not apply to a person designated as a 21st Century Learner Fellow pursuant to section eleven, article three, chapter eighteen-a of this code. The additional retirement plan contracted for by the governing boards prior to the first day of July, one thousand nine hundred ninety-one, remains in effect unless changed by the Higher Education Policy Commission. Nothing in this section may be construed to consider employees of the governing boards or the Council for Community and Technical College Education as employees of the Higher Education Policy Commission, nor is the Higher Education Policy Commission responsible or liable for retirement benefits contracted by, or on behalf of, the governing boards or the Council for Community and Technical College Education.
~~(h) It is the intent of the Legislature in amending and reenacting this section during its two thousand one regular session solely to:~~
~~(1) Maintain the current retirement plans offered to state higher education employees in their current form;~~
~~(2) Clarify that employees of the Higher Education Policy Commission are participants in the higher education retirement plan;~~
~~(3) Codify the current contribution levels of the governing boards, the Higher Education Policy Commission and their employees toward the present higher education retirement plan;~~
~~(4) Make mandatory the~~ ~~minimum~~ ~~contribution levels of the governing boards and Higher Education Policy Commission;~~
~~(5) Establish a standardized retirement policy for all~~ ~~state higher education employees as determined by~~ ~~either~~ ~~the policy~~ ~~commission~~ ~~or governing boards;~~
~~(6) Clarify the application and purposes of the additional and supplemental retirement plans previously provided for in this section; and~~
~~(7) Remove obsolete and archaic language.~~
The bill (Eng. H. B. No. 4623), as amended, was then ordered to third reading.
Without objection, the Senate returned to the third order of business.
A message from The Clerk of the House of Delegates announced that that body had refused to recede from its amendments, and requested the appointment of a committee of conference of three from each house on the disagreeing votes of the two houses, as to
Eng. Com. Sub. for Senate Bill No. 571, Relating to certain firefighters' workers' compensation benefits.
The message further announced the appointment of the following conferees on the part of the House of Delegates:
Delegates Fleischauer, Guthrie and Ellem.
On motion of Senator Chafin, the Senate agreed to the appointment of a conference committee on the bill.
Whereupon, Senator Tomblin (Mr. President) appointed the following conferees on the part of the Senate:
Senators Jenkins, Minard and McKenzie.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced that that body had refused to concur in the Senate amendments to, and requested the Senate to recede therefrom, as to
Eng. Com. Sub. for House Bill No. 3215, Removing the administrative link between Shepherd University and Blue Ridge Community and Technical College.
On motion of Senator Chafin, the Senate refused to recede from its amendments to the bill and requested the appointment of a committee of conference of five from each house on the disagreeing votes of the two houses.
Whereupon, Senator Tomblin (Mr. President) appointed the following conferees on the part of the Senate:
Senators Plymale, Edgell, Prezioso, Wells and Facemyer.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced that that body had refused to concur in the Senate amendments to, and requested the Senate to recede therefrom, as to
Eng. Com. Sub. for House Bill No. 4471, Making certain changes to the West Virginia State Police Retirement System.
On motion of Senator Chafin, the Senate refused to recede from its amendments to the bill and requested the appointment of a committee of conference of three from each house on the disagreeing votes of the two houses.
Whereupon, Senator Tomblin (Mr. President) appointed the following conferees on the part of the Senate:
Senators Foster, McCabe and Facemyer.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced that that body had refused to concur in the Senate amendments to, and requested the Senate to recede therefrom, as to
Eng. House Bill No. 4482, Allowing payments from the Parkways Authority to the Hatfield-McCoy Regional Recreational Authority to continue past the nine-year limitation.
On motion of Senator Chafin, the Senate refused to recede from its amendments to the bill and requested the appointment of a committee of conference of three from each house on the disagreeing votes of the two houses.
Whereupon, Senator Tomblin (Mr. President) appointed the following conferees on the part of the Senate:
Senators Bailey, Edgell and Guills.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
The Senate again proceeded to the fourth order of business.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Com. Sub. for Senate Bill No. 573 (originating in the Committee on Education), Increasing public school teachers' and service personnel annual salaries.
And reports back a committee substitute for same with the following title:
Com. Sub. for Com. Sub. for Senate Bill No. 573 (originating in the Committee on Finance)--A Bill to amend and reenact §18A-4-2, §18A-4-3 and §18A-4-8a of the Code of West Virginia, 1931, as amended, all relating to school personnel salary increases; increasing minimum salaries of public school teachers; increasing salary increment for principals and assistant principals; and increasing minimum salaries of school service personnel.
With the recommendation that the committee substitute for committee substitute do pass.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being granted, the bill (Com. Sub. for Com. Sub. for S. B. No. 573) contained in the preceding report from the Committee on Finance was taken up for immediate consideration, read a first time and ordered to second reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
The bill was read a second time and ordered to engrossment and third reading.
Engrossed Committee Substitute for Committee Substitute for Senate Bill No. 573 was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 573) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2008.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 573) takes effect July 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Senate Bill No. 788 (originating in the Committee on the Judiciary)--A Bill to amend and reenact §17C-5-2 of the Code of West Virginia, 1931, as amended, relating generally to driving under the influence; requiring mandatory community service for persons convicted of driving under the influence of alcohol, controlled substances or drugs; and requiring a registry of persons convicted to be maintained by the State Police.
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 4023, Provide for the denial or suspension of a driver's license for any student who withdraws from school or fails to receive passing grades.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 4023) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Chafin moved that the constitutional rule requiring a bill to be read on three separate days be suspended.
The roll being taken, the yeas were: Bailey, Bowman, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Stollings, Wells, White and Tomblin (Mr. President)--25.
The nays were: Barnes, Boley, Caruth, Guills, Sprouse, Sypolt, Unger and Yoder--8.
Absent: Sharpe--1.
So, less than four fifths of the members present and voting having voted in the affirmative, the President declared the motion to suspend the constitutional rule rejected.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. House Bill No. 4075, Providing for a video recording device monitoring system during Amber Alert periods.
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Jeffrey V, Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being granted, the bill (Eng. H. B. No. 4075) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
The bill was read a second time and ordered to third reading.
Having been engrossed, the bill (Eng. H. B. No. 4075) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4075) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 4117, Expanding eligibility for state minimum salary supplements for classroom teachers achieving certain national certification.
Now on second reading, having been read a first time and referred to the Committee on Finance on March 4, 2008;
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 4117) contained in the preceding report from the Committee on Finance was taken up for immediate consideration, read a second time and ordered to third reading.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 4150, Requiring the purchasing of American-made flags with state funds.
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 4150) contained in the preceding report from the Committee on Finance was taken up for immediate consideration, read a first time and ordered to second reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
The bill was read a second time and ordered to third reading.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4150) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4150) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 4296, Relating to the rights of crime victims.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 4296) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
The bill (Eng. Com. Sub. for H. B. No. 4296) was then read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 4A. POST-CONVICTION HABEAS CORPUS.
§53-4A-7a. Denial of relief; hearings; evidence; record; judgment.
(a) If the petition, affidavits, exhibits, records and other documentary evidence attached thereto, or the return or other pleadings, or the record in the proceedings which resulted in the conviction and sentence, or the record or records in a proceeding or proceedings on a prior petition or petitions filed under the provisions of this article, or the record or records in any other proceeding or proceedings instituted by the petitioner to secure relief from his conviction or sentence, show to the satisfaction of the court that the petitioner is entitled to no relief, or that the contention or contentions and grounds (in fact or law) advanced have been previously and finally adjudicated or waived, the court shall enter an order denying the relief sought. If it appears to the court from said petition, affidavits, exhibits, records and other documentary evidence attached thereto, or the return or other pleadings, or any such record or records referred to above, that there is probable cause to believe that the petitioner may be entitled to some relief and that the contention or contentions and grounds (in fact or law) advanced have not been previously and finally adjudicated or waived, the court shall promptly hold a hearing and/or take evidence on the contention or contentions and grounds (in fact or law) advanced, and the court shall pass upon all issues of fact without a jury. The court may also provide for one or more hearings to be held and/or evidence to be taken in any other county or counties in the state.
(b) A record of all proceedings under this article and all hearings and evidence shall be made and kept. The evidentiary depositions of witnesses taken by either the petitioner or the state, on reasonable notice to the other, may be read as evidence. The court may receive proof by proper oral testimony or other proper evidence. All of the evidence shall be made a part of the record. When a hearing is held and/or evidence is taken by a judge of a circuit court or statutory court in vacation, a transcript of the proceedings shall be signed by the judge and certified to the clerk of the court in which the judgment is to be rendered, and be entered by him among the records of that court. A record of all proceedings in the supreme court of appeals shall be entered among the records of such court.
(c) When the court determines to deny or grant relief, as the case may be, the court shall enter an appropriate order with respect to the conviction or sentence in the former criminal proceedings and such supplementary matters as are deemed necessary and proper to the findings in the case, including, but not limited to, remand, the vacating or setting aside of the plea, conviction and sentence, rearraignment, retrial, custody, bail, discharge, correction of sentence and resentencing, or other matters which may be necessary and proper. In any order entered in accordance with the provisions of this section, the court shall make specific findings of fact and conclusions of law relating to each contention or contentions and grounds (in fact or law) advanced, shall clearly state the grounds upon which the matter was determined, and shall state whether a federal and/or state right was presented and decided. Any order entered in accordance with the provisions of this section shall constitute a final judgment, and, unless reversed, shall be conclusive.
(d) Notwithstanding any provision of law to the contrary, whenever a conviction from a crime of violence is reversed or a sentence of incarceration for such an offence is vacated pursuant to the provisions of this article, the prosecuting attorney of the county of prosecution shall, prior to a retrial or entering into any plea negotiations or sentence negotiations to resolve the matter, notify the victim or if the offence was a homicide, the next of kin of the victim, by United States mail sent to the last known address of said person, if his or her name and address has previously been provided to the prosecuting attorney.
The bill, as amended, was then ordered to third reading.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4296) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4296) passed.
The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4296--A Bill to amend and reenact §53-4A-7 of the Code of West Virginia, 1931, as amended, relating to the rights of crime victims; requiring that prosecuting attorneys provide notice to victims of crimes of violence or next of kin in homicides when a habeas corpus proceeding vacates a conviction or sentence and the victim or next of kin previously provides names and addresses.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 4476, Public-Private Transportation Facilities Act.
With amendments from the Committee on Transportation and Infrastructure pending;
And has also amended same.
Now on second reading, having been read a first time and referred to the Committee on Finance on March 6, 2008;
And reports the same back with the recommendation that it do pass as last amended by the Committee on Finance.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 4476) contained in the preceding report from the Committee on Finance was taken up for immediate consideration and read a second time.
The following amendment to the bill, from the Committee on Finance, was reported by the Clerk:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §17-27-1, §17-27-2, §17-27-3, §17-27-4, §17-27-5, §17-27-6, §17-27-7, §17-27-8, §17-27-9, §17-27-10, §17-27-11, §17-27-12, §17-27-13, §17-27-14, §17-27-15, §17-27-16, §17-27-17 and §17-27-18, all to read as follows:
ARTICLE 27. PUBLIC-PRIVATE TRANSPORTATION FACILITIES ACT.
§17-27-1. Legislative findings and purposes.
The Legislature finds and declares:
(1) That there is a public need for timely acquisition or construction of and improvements to transportation facilities within the state that are compatible with state and local transportation plans;
(2) That public need may not be wholly satisfied by existing ways in which transportation facilities are acquired, constructed or improved;
(3) That authorizing private entities to acquire, construct or improve one or more transportation facilities may result in the availability of transportation facilities to the public in a more timely or less costly manner, thereby serving the public health, safety, convenience and welfare and the enhancement of the residential, agricultural, recreational, economic, commercial and industrial opportunities;
(4) That providing a mechanism for the solicitation, receipt and consideration of proposals submitted by private entities for the purposes described in this section serves the public purpose of this article to the extent that the action facilitates the timely acquisition or construction of or improvement to a qualifying transportation facility or the continued operation of a qualifying transportation facility; and
(5) That providing for the expansion and acceleration of transportation financing using innovative financing mechanisms, including, but not limited to, design-build contracting and financing arrangements, will add to the convenience of the public and allow public and private entities to have the greatest possible flexibility in contracting with each other for the provision of the public services which are the subject of this article.
§17-27-2. Definitions.
As used in this article, the following words and terms have the following meanings:
(1) "Comprehensive agreement" means the comprehensive agreement by and between a developer and the division required by section nine of this article.
(2) "Department" means the Department of Transportation.
(3) "Developer" means the private entity that is responsible for the acquisition, construction or improvement of a qualifying transportation facility.
(4) "Division" means the Division of Highways.
(5) "Material default" means any default by the developer in the performance of its duties under subsection (f), section eight of this article that jeopardizes adequate service to the public from a qualifying transportation facility and remains unremedied after the division has provided notice to the developer and a reasonable cure period has elapsed.
(6) "Private entity" means any natural person, corporation, limited liability company, partnership, joint venture or other private business entity.
(7) "Public entity" means the state of West Virginia or any political subdivision thereof.
(8) "Qualifying transportation facility" means one or more transportation facilities acquired, constructed or improved by a private entity pursuant to this article.
(9) "Revenues" mean the user fees or service payments generated by a qualifying transportation facility.
(10) "Service contract" means a contract entered into between a public entity and a developer pursuant to section six of this article.
(11) "Service payments" mean payments to the developer of a qualifying transportation facility pursuant to a service contract.
(12) "State" means the state of West Virginia.
(13) "Transportation facility" means any public inland waterway port facility, road, bridge, tunnel, overpass or existing airport used for the transportation of persons or goods, and the structures, equipment, facilities or improvements necessary or incident thereto.
(14) "User fees" mean the rates, tolls, fees or other charges imposed by the developer of a qualifying transportation facility for use of all or a portion of the qualifying transportation facility pursuant to the comprehensive agreement.
§17-27-3. Prerequisites for development.
Any private entity seeking authorization under this article to acquire, construct or improve a transportation facility shall first submit a conceptual proposal as set forth in section five of this article: Provided, That notwithstanding any provision of this code to the contrary, the division has no duty to accept, consider or review a conceptual proposal that is not solicited by the division. The private entity may initiate the approval process pursuant to subsections (a) and (b) of said section or the division may alternatively request proposals pursuant to subsection (c) of said section.

§17-27-4. Powers and duties of the division and other agencies that are part of the department.

In addition to the powers and duties set forth elsewhere in this code, the division and any other agency that is part of the department may:
(1) Undertake one level of review for each proposal submitted by a private entity in accordance with this article. The review shall consist of the review by the division of the conceptual proposal: Provided, That expenses of the division incurred for review of proposal shall be paid by the private entity submitting the proposal. The division shall take into account at all times the needs and funding capabilities of the state as a whole in terms of transportation;
(2) Enter into agreements, contracts or other transactions with any agency that is part of the department, any federal, state, county, municipal agency or private entity;
(3) Act on behalf of the state and represent the state in the planning, financing, development and construction of any transportation facility for which solicited proposals have been received in accordance with the provisions of this article, with the concurrence of the affected public entity. Other public entities in this state shall cooperate to the fullest extent with what the division considers appropriate to effectuate the duties of the division;
(4) Exempt from disclosure any sensitive business, commercial or financial information that is not customarily provided to business competitors that is submitted to the division for final review and approval;
(5) Exempt from disclosure any documents, communications or information described in this section including, but not limited to, the project's design, management, financing and other details in accordance with the provisions of article one, chapter twenty-nine-b of this code; and
(6) Do any and all things necessary to carry out and accomplish the purposes of this article.

§17-27-5. Submission and review of conceptual proposals; approval by the Commissioner of Highways.

(a) A private entity may submit in writing a solicited conceptual proposal for a transportation facility to the division for consideration. The conceptual proposal shall include the following:
(1) A statement of the private entity's qualifications and experience;
(2) A description of the proposed transportation facility;
(3) A description of the financing for the transportation facility; and
(4) A statement setting forth the degree of public support for the proposed transportation facility, including a statement of the benefits of the proposed transportation facility to the public and its compatibility with existing transportation facilities.
(b) Following review by the division, the division shall submit to the Commissioner of Highways the conceptual proposals and priority ranking for review for final selection.
(c) The conceptual proposal shall be accompanied by the following material and information unless waived by the division with respect to the transportation facility or facilities that the private entity proposes to develop as a qualifying transportation facility:
(1) A topographic map (1:2,000 or other appropriate scale) indicating the location of the transportation facility or facilities;
(2) A description of the transportation facility or facilities, including the conceptual design of the facility or facilities and all proposed interconnections with other transportation facilities;
(3) The projected total life-cycle cost of the transportation facility or facilities and the proposed date for acquisition of or the beginning of construction of, or improvements to, the transportation facility or facilities;
(4) A statement setting forth the method by which the developer proposes to secure all property interests required for the transportation facility or facilities: Provided, That with the approval of the division, the private entity may request that the comprehensive agreement assign the division with responsibility for securing all property interests, including public utility facilities, with all costs, including costs of acquiring the property, to be reimbursed to the division by the private entity. The statement shall include the following information regarding the property interests or rights, including, but not limited to, rights to extract mineable minerals:
(A) The names and addresses, if known, of the current owners of the property needed for the transportation facility or facilities;
(B) The nature of the property interests to be acquired;
(C) Any property that the division may expect to condemn; and
(D) The extent to which the property has been or will be subjected to the extraction of mineable minerals.
(5) Information relating to the current transportation plans, if any, of each affected local jurisdiction;
(6) A list of all permits and approvals required for acquisition or construction of or improvements to the transportation facility or facilities from local, state or federal agencies and a projected schedule for obtaining the permits and approvals: Provided, That the acquisition, construction, improvement or operation of a qualifying transportation facility that includes the extraction of mineable minerals is required to obtain all necessary permits or approvals from all applicable authorities in the same manner as if it were not a qualifying transportation facility under this article;
(7) A list of public utility facilities, if any, that will be crossed or affected by or as the result of the construction or improvement of the public port transportation facility or facilities and a statement of the plans of the developer to accommodate the crossings or relocations;
(8) A statement setting forth the developer's general plans for financing and operating the transportation facility or facilities;
(9) The names and addresses of the persons who may be contacted for further information concerning the request;
(10) Information about the developer, including, but not limited to, an organizational chart of the developer, capitalization of the developer, experience in the operation of transportation facilities and references and certificates of good standing from the Tax Commissioner, Insurance Commissioner and the Division of Unemployment Compensation evidencing that the developer is in good standing with state tax, workers' compensation and unemployment compensation laws, respectively; and
(11) Any additional material and information requested by the Commissioner of Highways.
(d) The division, with approval of the Commissioner of Highways, may solicit proposals from private entities for the acquisition, construction or improvement of transportation facilities in a form and with the content determined by the division.
(e) The division may solicit any proposal for the acquisition, construction or improvement of the transportation facility or facilities as a qualifying transportation facility if it is determined that it serves the public purpose of this article. The division may determine that the acquisition, construction or improvement of the transportation facility or facilities as a qualifying transportation facility serves a public purpose if:
(1) There is a public need for the transportation facility of the type the private entity proposes to operate as a qualifying transportation facility;
(2) The transportation facility and the proposed interconnections with existing transportation facilities and the developer's plans for development of the qualifying transportation facility are reasonable and compatible with the state transportation plan and with the local comprehensive plan or plans;
(3) The estimated cost of the transportation facility or facilities is reasonable in relation to similar facilities;
(4) The acquisition, construction, improvement or the financing of the transportation facilities does not involve any moneys from the State Road Fund unless those moneys from the State Road Fund serve as a required match for federal funds specifically earmarked in a federal authorization or appropriation bill for a transportation facility to be acquired, constructed or equipped pursuant to this article: Provided, That the dedication of State Road Fund moneys in any fiscal year as state required match for the federal earmark does not exceed four percent of the immediate preceding three fiscal years average of division's construction contracts awarded under the competitive bid process.
(5) The use of federal funds in connection with the financing of a qualifying transportation facility has been determined by the division to be compatible with the state transportation plan and with the local comprehensive plan or plans; and
(6) The private entity's plans will result in the timely acquisition or construction of or improvements to the transportation facility for their more efficient operation and that the private entity's plans will result in a more timely and economical delivery of the transportation facility than otherwise available under existing delivery systems.
(f) Notwithstanding any provision of this article to the contrary, the recommendation of the division to the Commissioner of Highways is subject to:
(1) The private entity's entering into a comprehensive agreement with the division; and
(2) With respect to transportation facilities, the requirement that public information dissemination with regard to any proposal under consideration comply with the division's policy on the public involvement process, as revised.
(g) In connection with its approval of the development of the transportation facility as a qualifying transportation facility, the division shall establish a date for the acquisition of or the beginning of construction of or improvements to the qualifying transportation facility. The division may extend that date.
(h) Selection by the Commissioner of Highways.
(1) Upon presentations of proposals received by the division, the commissioner shall make his or her decision for the project.
(2) The commissioner shall notify the division and the public of the final selection for the project.
§17-27-6. Service contracts.
In addition to any authority otherwise conferred by law, any public entity may contract for services to be provided for a qualifying transportation facility in exchange for service payments and other consideration as the division determines appropriate.
§17-27-7. Dedication of public property.
Any public entity may dedicate any property interest that it has for public use as a qualified transportation facility if it finds it will serve the public purpose of this article. In connection with the dedication, a public entity may convey any property interest that it has to the developer, by contract, for any consideration determined by the public entity. This consideration may include, without limitation, the agreement of the developer to develop the qualifying transportation facility. No real property may be dedicated by a public entity pursuant to this article unless all other public notice and comment requirements are met.
§17-27-8. Powers and duties of the developer.
(a) The developer has all power allowed by law generally to a private entity having the same form of organization as the developer and may acquire, construct or improve the qualifying transportation facility and impose user fees in connection with the use of the facility.
(b) The developer may own, lease or acquire any other right to facilitate the development of the qualifying transportation facility.
(c) Any financing of the qualifying transportation facility may be in the amounts and upon terms and conditions determined by the developer. The developer may issue debt, equity or other securities or obligations, enter into sale and leaseback transactions and secure any financing with a pledge of, security interest in, or lien on, any or all of its property, including all of its property interests in the qualifying transportation facility.
(d) Subject to applicable permit requirements, the developer may cross any canal or navigable watercourse as long as the crossing does not unreasonably interfere with then current navigation and use of the waterway.
(e) In developing the qualifying transportation facility, the developer may:
(1) Make classifications according to reasonable categories for assessment of user fees; and
(2) With the consent of the division, make and enforce reasonable rules to the same extent that the division may make and enforce rules with respect to a similar transportation facility. The developer may, by agreement with appropriate law-enforcement agencies, arrange for video enforcement in connection with its toll collection activities.
(f) The developer shall:
(1) Acquire, construct or improve the qualifying transportation facility in a manner that meets the engineering standards of:
(A) The authority for facilities operated and maintained by the division, in accordance with the provisions of the comprehensive agreement; and
(B) The division, in accordance with the provisions of the comprehensive agreement;
(2) Keep the qualifying transportation facility open for use by the members of the public at all times after its initial opening upon payment of the applicable user fees or service payments: Provided, That the qualifying transportation facility may be temporarily closed because of emergencies or, with the consent of the division, to protect the safety of the public or for reasonable construction or maintenance procedures;
(3) Contract for the performance of all maintenance and operation of the transportation facility through the division, using its maintenance and operations practices, until the date of termination of the developer's duties as defined in the comprehensive agreement;
(4) Cooperate with the division in establishing any interconnection with the qualifying transportation facility requested by the division;
(5) Remain in compliance with state tax, workers' compensation and unemployment compensation laws; and
(6) Comply with the provisions of the comprehensive agreement and any service contract.
§17-27-9. Comprehensive agreement.
(a) Prior to acquiring, constructing or improving the qualifying transportation facility, the developer shall enter into a comprehensive agreement with the division. The comprehensive agreement shall provide for:
(1) Delivery of performance or payment bonds in connection with the construction of or improvements to the qualifying transportation facility, in the forms and amounts satisfactory to the division;
(2) Review and approval of the final plans and specifications for the qualifying transportation facility by the division;
(3) Inspection of the construction of or improvements to the qualifying transportation facility to ensure that they conform to the engineering standards acceptable to the division;
(4) Maintenance of a policy or policies of public liability insurance or self-insurance, in a form and amount satisfactory to the division and reasonably sufficient to insure coverage of tort liability to the public and employees and to enable the continued operation of the qualifying transportation facility: Provided, That in no event may the insurance impose any pecuniary liability on the state, its agencies or any political subdivision of the state. Copies of the policies shall be filed with the division accompanied by proofs of coverage;
(5) Monitoring of the maintenance and operating practices of the developer by the division and the taking of any actions the division finds appropriate to ensure that the qualifying transportation facility is properly maintained and operated;
(6) Itemization and reimbursement to be paid to the division for the review and any services provided by the division;
(7) Filing of appropriate financial statements on a periodic basis;
(8) A reasonable maximum rate of return on investment for the developer;
(9) The date of termination of the developer's duties under this article and dedication to the division; and
(10) That a transportation facility shall accommodate all public utilities on a reasonable, nondiscriminatory and completely neutral basis and in compliance with the provisions of section seventeen-b, article four, chapter seventeen of this code.
(b) The comprehensive agreement may require user fees established by agreement of the parties. Any user fees shall be set at a level that, taking into account any service payments, allows the developer the rate of return on its investment specified in the comprehensive agreement: Provided, That the schedule and amount of the initial user fees to be imposed and any increase of the user fees must be approved by the Commissioner of the Division of Highways. A copy of any service contract shall be filed with the division. A schedule of the current user fees shall be made available by the developer to any member of the public on request. In negotiating user fees under this section, the parties shall establish fees that are the same for persons using the facility under like conditions and that will not unreasonably discourage use of the qualifying transportation facility. The execution of the comprehensive agreement or any amendment to the comprehensive agreement constitutes conclusive evidence that the user fees provided in the comprehensive agreement comply with this article. User fees established in the comprehensive agreement as a source of revenues may be in addition to, or in lieu of, service payments.
(c) In the comprehensive agreement, the division may agree to accept grants or loans from the developer, from time to time, from amounts received from the state or federal government or any agency or instrumentality of the state or federal government.
(d) The comprehensive agreement shall incorporate the duties of the developer under this article and may contain any other terms and conditions that the division determines serve the public purpose of this chapter. Without limitation, the comprehensive agreement may contain provisions under which the division agrees to provide notice of default and cure rights for the benefit of the developer and the persons specified in the comprehensive agreement as providing financing for the qualifying transportation facility. The comprehensive agreement may contain any other lawful terms and conditions to which the developer and the division mutually agree, including, without limitation, provisions regarding unavoidable delays or provisions providing for a loan of public funds to the developer to acquire, construct or improve one or more qualifying transportation facilities.
(e) The comprehensive agreement shall require the deposit of any earnings in excess of the maximum rate of return as negotiated in the comprehensive agreement in the Economic Development Project Bridge Loan Fund established pursuant to section eighteen-a, article twenty-two, chapter twenty-nine of this code.
(f) Notwithstanding any provision of this article to the contrary, the division may not enter into any comprehensive agreements with a developer after the thirtieth day of June, two thousand thirteen.
(g) The Division shall provide the Joint Committee on Government and Finance with a copy of any proposal selected from a solicitation for their possible comment. The Division shall wait thirty days to allow consideration of any comments provided by the Joint Committee on Government and Finance.
§17-27-10. Federal, state and local assistance.
The division may take any action to obtain federal, state or local assistance for a qualifying transportation facility that serves the public purpose of this article and may enter into any contracts required to receive federal assistance. The division may determine that it serves the public purpose of this article for all or any portion of the costs of a qualifying transportation facility to be paid, directly or indirectly, from the proceeds of a grant or loan made by the local, state or federal government or any agency or instrumentality thereof.
§17-27-11. Material default; remedies.
(a) Except upon written agreement of the developer and any other parties identified in the comprehensive agreement, the division may exercise, at its discretion, any or all of the following remedies provided in this section or elsewhere in this article to remedy any material default that has occurred or may continue to occur.
(1) To elect to take over the transportation facility or facilities and in that case it shall succeed to all of the rights, title and interest in the transportation facility or facilities, subject to any liens on revenues previously granted by the developer to any person providing financing for the facility or facilities and the provisions of subsection (c) of this section;
(2) To exercise the power of condemnation to acquire the qualifying transportation facility or facilities. Any person who has provided financing for the qualifying transportation facility and the developer, to the extent of its capital investment, may participate in the condemnation proceedings with the standing of a property owner;
(3) To terminate the comprehensive agreement and exercise any other rights and remedies that may be available to it at law or in equity, subject only to the express limitations of the terms of the comprehensive agreement; and
(4) To make or cause to be made any appropriate claims under the performance or payment bonds required by this article.
(b) In the event the division elects to take over a qualifying transportation facility pursuant to subdivision (1), subsection (a) of this section, the division may acquire, construct or improve the transportation facility, impose user fees for the use of the transportation facility and comply with any service contracts as if it were the developer. Any revenues that are subject to a lien shall be collected for the benefit of, and paid to, secured parties, as their interests may appear, to the extent necessary to satisfy the developer's obligations to secured parties, including the maintenance of reserves and the liens shall be correspondingly reduced and, when paid off, released. Remaining revenues, if any, after all payments to, or for the benefit of, secured parties shall be paid to the developer, subject to the negotiated maximum rate of return. The right to receive the payment, if any, shall be considered just compensation for the transportation facility or facilities. The full faith and credit of the division may not be pledged to secure any financing of the developer by the election to take over the qualifying transportation facility. Assumption of development of the qualifying transportation facility does not obligate the division to pay any obligation of the developer from sources other than revenues.

§17-27-12. Governmental entities prohibited from pledging full faith and credit.

The full faith and credit of the state, or any county, municipality or political subdivision of the state may not be pledged to secure any financing of the developer in connection with the acquisition, construction or equipping of a qualifying transportation facility.
§17-27-13. Condemnation.
(a) At the request of the developer, the division may exercise the power of condemnation that it has under law for the purpose of acquiring any lands or estates or interests in any lands or estates to the extent that the division finds that the action serves the public purpose of this article: Provided, That the power of condemnation may not be exercised if the extraction of mineable minerals is outside the defined one thousand foot corridor of the project or work which is the subject of a solicited conceptual proposal, comprehensive agreement or service contract submitted or entered into under the provisions of this article. Any amounts to be paid in any condemnation proceeding shall be paid by the developer.
(b) Until the division has provided written certification as to the existence of a material default under subsection (a), section eleven of this article, the power of condemnation may not be exercised against a qualifying transportation facility.
§17-27-14. Utility crossings.
The developer and each county, municipality, public service district, public utility, railroad and cable television provider whose facilities are to be crossed or affected shall cooperate fully with the other in planning and arranging the manner of the crossing or relocation of the facilities. Any entity possessing the power of condemnation is expressly granted the powers in connection with the moving or relocation of facilities to be crossed by the qualifying transportation facility or that must be relocated to the extent that the moving or relocation is made necessary or desirable by construction of or improvements to the qualifying transportation facility, which includes construction of or improvements to temporary facilities for the purpose of providing service during the period of construction or improvement. Any amount to be paid for the crossing, construction, moving or relocating of facilities shall be paid by the developer.
§17-27-15. Dedication of assets.
The division shall terminate the developer's authority and duties under this article on the date set forth in the comprehensive agreement. Upon termination, the division and duties of the developer under this article cease and the qualifying transportation facility shall be dedicated to the division for public use.

§17-27-16. Qualifying a transportation facility as a public improvement.

All qualifying transportation facilities authorized under this article are public improvements and are subject to article five-a, chapter twenty-one of this code. Article twenty-two, chapter five of this code applies to all qualifying transportation facilities authorized under this article. All construction, reconstruction, repair or improvement of qualifying transportation facilities authorized under this article shall be awarded by competitive bidding. Competitive bids shall be solicited by the division for each construction contract in excess of twenty-five thousand dollars in total cost. Construction costs should be of sufficient size that the performance and payment bonds are in the ten million to thirty million dollar range, where possible. Competitive bids shall be solicited by the division through publication of a Class II legal advertisement, in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area is the county or municipality in which the transportation facility is to be located. The advertisement shall also be published as a Class II advertisement in a newspaper of general circulation published in the city of Charleston. The advertisement shall solicit sealed proposals for the construction of the transportation facility, stating the time and place for the opening of bids. All bids shall be publicly opened and read aloud. Construction contracts shall be awarded to the lowest qualified responsible bidder, who shall furnish a sufficient performance or payment bond: Provided, That both the division and the private entity have the right to reject all bids and solicit new bids for the construction contract. The provisions of article one-c, chapter twenty-one of this code apply to the construction of all qualifying transportation facilities approved under this article.
§17-27-17. Exemptions from taxation.
(a) The exercise of the powers granted in this article will be in all respects for the benefit of the people of this state, for the improvement of their health, safety, convenience and welfare and for the enhancement of their residential, agricultural, recreational, economic, commercial and industrial opportunities and is a public purpose. As the construction, acquisition, improvement, operation and maintenance of qualifying transportation facilities will constitute the performance of essential governmental functions, a developer is not required to pay any taxes or assessments upon any qualifying transportation facility or any property acquired or used by the developer under the provisions of this article or upon the income therefrom, other than taxes collected from the consumer pursuant to article fifteen, chapter eleven of this code.
(b) Nothing in this section shall be construed to exempt a developer from the imposition of a business and occupation tax or privilege tax by a municipality in accordance with the provisions of section five, article thirteen, chapter eight of this code.
(c) Nothing in article fourteen-a, chapter eleven of this code, which establishes a motor carrier road tax, shall apply to any motor carrier operated or caused to be operated on any qualified transportation facility.
§17-27-18. Construction.
The provisions of this article are remedial and shall be liberally construed and applied so as to promote the purposes set out in section one of this article.
On motion of Senator Chafin, the following amendment to the Finance committee amendment to the bill (Eng. Com. Sub. for H. B. No. 4476) was reported by the Clerk:
On page eleven, section five, subsection (e), subdivision (4), after the word "process" by changing the period to a colon and inserting the following proviso: Provided, however, That the moneys from the General Revenue Fund may also be used if so designated and approved by the Legislature.
Following discussion,
The question being on the adoption of Senator Chafin's amendment to the Finance committee amendment to the bill, the same was put and prevailed.
The question now being on the adoption of the Finance committee amendment to the bill (Eng. Com. Sub. for H. B. No. 4476), as amended.
Following extended discussion and a point of inquiry to the President, with resultant response thereto,
Senator Plymale moved the previous question, which motion prevailed.
The previous question having been ordered, that being on the adoption of the Finance committee amendment to the bill, as amended, and on this question, Senator Unger demanded the yeas and nays.
The roll being taken, the yeas were: Bailey, Bowman, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Wells, White and Tomblin (Mr. President)--25.
The nays were: Barnes, Boley, Caruth, Guills, Hunter, Sypolt, Unger and Yoder--8.
Absent: Sharpe--1.
So, a majority of those present and voting having voted in the affirmative, the President declared the Finance committee amendment to the bill (Eng. Com. Sub. for H. B. No. 4476), as amended, adopted.
The bill, as amended, was then ordered to third reading.
At the request of Senator Bowman, and by unanimous consent, Senator Bowman addressed the Senate regarding the merits of Engrossed Committee Substitute for House Bill No. 4476.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 4484, Relating to the criminal offense of stalking.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 4484) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
The bill (Eng. Com. Sub. for H. B. No. 4484) was then read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-9a. Stalking; harassment; penalties; definitions.
(a) Any person who ~~willfully and~~ repeatedly follows another knowing or having reason to know that the conduct causes the person followed to reasonably fear for his or her safety or suffer significant emotional distress. and harasses a person with whom he or she has or in the past has had or with whom he or she seeks to establish a personal or social relationship, whether or not the intention is reciprocated, a member of that person's immediate family, his or her current social companion, his or her professional counselor or attorney, is guilty of a misdemeanor and, upon conviction thereof, shall be incarcerated in the county or regional jail for not more than six months or fined not more than one thousand dollars, or both.
(b) Any person who willfully and repeatedly follows and makes a credible threat against a person with whom he or she has or in the past has had or with whom he or she seeks to establish a personal or social relationship, whether or not the intention is reciprocated, or against a member of that person's immediate family, his or her current social companion, his or her professional counselor or attorney with the intent to place or placing him or her in reasonable apprehension that he or she or a member of his or her immediate family will suffer death, sexual assault, kidnaping, bodily injury or battery is guilty of a misdemeanor and, upon conviction thereof, shall be incarcerated in the county or regional jail for not more than six months or fined not more than one thousand dollars, or both.
(b) ~~(c)~~ Any person who repeatedly harasses or repeatedly makes credible threats against another a person with whom he or she has, or in the past has had or with whom he or she seeks to establish a personal or social relationship, whether or not the intention is reciprocated, or against a member of that person's immediate family, his or her current social companion, his or her professional counselor or attorney, is guilty of a misdemeanor and, upon conviction thereof, shall be incarcerated in the county or regional jail for not more than six months or fined not more than one thousand dollars, or both.
(c) ~~(d)~~ Notwithstanding any provision of this code to the contrary, any person who violates the provisions of subsection (a), or (b) ~~or (c)~~ of this section in violation of an order entered by a circuit court, magistrate court or family law master, in effect and entered pursuant to part 48-5-501, et seq., part 48-5-601, et seq. or 48-27-403 of this code is guilty of a misdemeanor and, upon conviction thereof, shall be incarcerated in the county jail for not less than ninety days nor more than one year or fined not less than two thousand dollars nor more than five thousand dollars, or both.

(d) ~~(e)~~ A second or subsequent conviction for a violation of this section occurring within five years of a prior conviction is a felony punishable by incarceration in a state correctional facility for not less than one year nor more than five years or fined not less than three thousand dollars nor more than ten thousand dollars, or both.
(e) ~~(f)~~ Notwithstanding any provision of this code to the contrary, any person against whom a protective order is in effect pursuant to the provisions of §48-27-403 of this code who has been served with a copy of said order or a final order protection entered pursuant to the provisions of §48-5-601 ~~48-27-501~~ of this code who is convicted of a violation of the provisions of this section shall be guilty of a felony and punishable by incarceration in a state correctional facility for not less than one year nor more than five years or fined not less than three thousand dollars nor more than ten thousand dollars, or both.
~~(g) For the purposes of this section:~~
(1) ~~"Harasses" means willful conduct directed at a specific person or persons which would cause a reasonable person mental injury or emotional distress;~~ "Bodily injury" means substantial physical pain, illness or any impairment of physical condition;
(2) "Credible threat" means a threat of bodily injury made with the apparent ability to carry out the threat and with the result that a reasonable person would believe that the threat could be carried out; and
(3) ~~"Bodily injury" means substantial physical pain, illness or any impairment of physical condition; and~~ "Harasses" means willful conduct directed at a specific person or persons which would cause a reasonable person mental injury or emotional distress
(4) "Immediate family" means a spouse, parent, stepparent, mother-in-law, father-in-law, child, stepchild, sibling, or any person who regularly resides in the household or within the prior six months regularly resided in the household.
(5) "Repeatedly" means on two or more occasions.
~~(h)~~ Nothing in this section shall be construed to prevent lawful assembly and petition for the redress of grievances, including, but not limited to: Any labor ~~dispute~~ or employment relations issue; demonstration at the seat of federal, state, county or municipal government; activities protected by the West Virginia constitution or the United States Constitution or any statute of this state or the United States.
~~(i)~~ (g) Any person convicted under the provisions of this section who is granted probation or for whom execution or imposition of a sentence or incarceration is suspended is to have as a condition of probation or suspension of sentence that he or she participate in counseling or medical treatment as directed by the court.
~~(j)~~ (h) Upon conviction, the court may issue an order restraining the defendant from any contact with the victim for a period not to exceed ten years. The length of any restraining order shall be based upon the seriousness of the violation before the court, the probability of future violations, and the safety of the victim or his or her immediate family. The duration of the restraining order may be longer than five years only in cases when a longer duration is necessary to protect the safety of the victim or his or her immediate family.
~~(k)~~ (i) It is a condition of bond for any person accused of the offense described in this section that the person is to have no contact, direct or indirect, verbal or physical, with the alleged victim.
~~(l)~~ (j) Nothing in this section may be construed to preclude a sentencing court from exercising its power to impose home confinement with electronic monitoring as an alternative sentence.
(k) The Governor's Committee on Crime, Delinquency and Correction, after consultation with representatives of labor, licensed domestic violence programs and rape crisis centers which meet the standards required by the W. Va. Foundation for Rape Information and Services, shall promulgate rules for state, county, and municipal law-enforcement officers and agencies with regard to enforcement of this section.
On motion of Senator Barnes, the following amendment to the Judiciary committee amendment to the bill (Eng. Com. Sub. for H. B. No. 4484) was reported by the Clerk and adopted:
On page four, section nine-a, subsection (e), subdivision (5), after the words "petition for the" by inserting the word "lawful".
The question now being on the adoption of the Judiciary committee amendment to the bill, as amended, the same was put and prevailed.
The bill, as amended, was ordered to third reading.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4484) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4484) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 4588, Relating to public school support.
With amendments from the Committee on Education pending;
And has also amended same.
Now on second reading, having been read a first time and referred to the Committee on Finance on March 4, 2008;
And reports the same back with the recommendation that it do pass as last amended by the Committee on Finance.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 4588) contained in the preceding report from the Committee on Finance was taken up for immediate consideration and read a second time.
The following amendment to the bill, from the Committee on Finance, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §18-9A-5a, §18-9A-5b, §18-9A-10a and §18-9A-22 of the Code of West Virginia, 1931, as amended, be repealed; that §18-1-1 of said code be amended and reenacted; that §18-9A-2, §18-9A-3a, §18-9A-4, §18-9A-5, §18-9A-6, §18-9A-7, §18-9A-8, §18-9A-9, §18-9A-10 and §18-9A-21 of said code be amended and reenacted; and that §18-20-5 of said code be amended and reenacted, all to read as follows:
CHAPTER 18. EDUCATION.
ARTICLE 1. DEFINITIONS; LIMITATIONS OF CHAPTER; GOALS
FOR

EDUCATION.
§18-1-1. Definitions.
The following words used in this chapter and in any proceedings pursuant thereto have the meanings ascribed to them unless the context clearly indicates a different meaning:
(a) "School" means the students and teachers assembled in one or more buildings, organized as a unit;
(b) "District" means county school district;
(c) "State board" means the West Virginia Board of Education;
(d) "County board" or "board" means a county board of education;
(e) "State superintendent" means the State Superintendent of Free Schools;
(f) "County superintendent" or "superintendent" means a county superintendent of schools;
(g) "Teacher" means a teacher, supervisor, principal, superintendent, or public school librarian ~~registered professional nurse, licensed by the West Virginia Board of Examiners for Registered Professional Nurses and employed by a county board, who has a baccalaureate degree;~~ or any other person regularly employed for instructional purposes in a public school in this state;
(h) "Service person" or "service personnel," whether singular or plural, means any non-teaching school employee who is not included in the meaning of "teacher" as defined in this section, and who serves the school or schools as a whole, in a nonprofessional capacity, including such areas as secretarial, custodial, maintenance, transportation, school lunch and aides. Any reference to "service employee" or "service employees" in this chapter or chapter eighteen-a of this code means service person or service personnel as defined in this section;
(i) "Social worker" means a nonteaching school employee who, at a minimum, possesses an undergraduate degree in social work from an accredited institution of higher learning and who provides various professional social work services, activities or methods as defined by the State Board for the benefit of students;
(j) "Regular full-time employee" means any person employed by a county board who has a regular position or job throughout his or her employment term, without regard to hours or method of pay;
(k) "Career clusters" means broad groupings of related occupations;
(l) "Work-based learning" means a structured activity that correlates with and is mutually supportive of the school-based learning of the student and includes specific objectives to be learned by the student as a result of the activity;
(m) "School-age juvenile" means any individual who is entitled to attend or who, if not placed in a residential facility, would be entitled to attend public schools in accordance with: (1) Section five, article two of this chapter; (2) sections fifteen and eighteen, article five of this chapter; or (3) section one, article twenty of this chapter;
(n) "Student with a disability" means an exceptional child, other than gifted, pursuant to section one, article twenty of this chapter;
(o) "Low-density county" means a county whose ratio of student population to square miles is less than or equal to the state average ratio as computed by the State Department of Education;
(p) "High-density county" means a county whose ratio of student population to square miles is greater than the state average ratio as computed by the State Department of Education; and
~~(q)~~ (o) "Casual deficit" means a deficit of not more than three percent of the approved levy estimate or a deficit that is nonrecurring from year to year.
ARTICLE 9A. PUBLIC SCHOOL SUPPORT.
§18-9A-2. Definitions.
For the purpose of this article:
(a) "State board" means the West Virginia Board of Education.
(b) "County board" or "board" means a county board of education.
(c) "Professional salaries" means the state legally mandated salaries of the professional educators as provided in article four, chapter eighteen-a of this code.
(d) "Professional educator" shall be synonymous with and shall have the same meaning as "teacher" as defined in section one, article one of this chapter, and includes technology integration specialists.
(e) "Professional instructional personnel" means a professional educator whose regular duty is as that of a classroom teacher, librarian, ~~counselor,~~ attendance director, or school psychologist ~~or school nurse with a bachelor's degree and who is licensed by the West Virginia Board of Examiners for Registered Professional Nurses~~. A professional educator having both instructional and administrative or other duties shall be included as professional instructional personnel for that ratio of the school day for which he or she is assigned and serves on a regular full-time basis in appropriate instruction, library, ~~counseling,~~ attendance, or psychologist ~~or nursing~~ duties.
(f) "Professional student support personnel" means a "professional person" as those terms are defined in section one, article one, chapter eighteen-a of this code who is assigned and serves on a regular full-time basis as a counselor or as a school nurse with a bachelor's degree and who is licensed by the West Virginia Board of Examiners for Registered Professional Nurses.
~~(f)~~ (g) "Service personnel salaries" means the state legally mandated salaries for service personnel as provided in section eight-a, article four, chapter eighteen-a of this code.
~~(g)~~ (h) "Service personnel" means all personnel as provided in section eight, article four, chapter eighteen-a of this code. For the purpose of computations under this article of ratios of service personnel to ~~adjusted enrollment~~ net enrollment, a service employee shall be counted as that number found by dividing his or her number of employment days in a fiscal year by two hundred: Provided, That the computation for any service person employed for three and one-half hours or less per day as provided in section eight-a, article four, chapter eighteen-a of this code shall be calculated as one-half an employment day.
~~(h)~~ (i) "Net enrollment" means the number of pupils enrolled in special education programs, kindergarten programs and grades one to twelve, inclusive, of the public schools of the county. ~~Commencing with the school year beginning on the first day of July, one thousand nine hundred eighty-eight,~~ Net enrollment further shall include:
(1) Adults enrolled in regular secondary vocational programs existing as of the effective date of this section, subject to the following:
~~(1)~~ (A) Net enrollment includes no more than one thousand of those adults counted on the basis of full-time equivalency and apportioned annually to each county in proportion to the adults participating in regular secondary vocational programs in the prior year counted on the basis of full-time equivalency; and
~~(2)~~ (B) Net enrollment does not include any adult charged tuition or special fees beyond that required of the regular secondary vocational student;
(2) Students enrolled in early childhood education programs as provided in section forty-four, article five of this chapter, counted on the basis of full-time equivalency;
(3) No pupil shall be counted more than once by reason of transfer within the county or from another county within the state, and no pupil shall be counted who attends school in this state from another state;
(4) The enrollment shall be modified to the equivalent of the instructional term and in accordance with the eligibility requirements and rules established by the state board; and
(5) For any county whose net enrollment as determined under all other provisions of this definition is less than one thousand four hundred, the net enrollment of the county shall be increased by an amount to be determined in accordance with the following:
(A) Divide the state's lowest county student population density by the county's actual student population density;
(B) Multiply the amount derived from the calculation in paragraph (A) of this subdivision by three hundred;
(C) If the increase in net enrollment as determined under this subdivision plus the county's net enrollment as determined under all other provisions of this subsection is greater than one thousand four hundred, the increase in net enrollment shall be reduced so that the total does not exceed one thousand four hundred; and
(D) During the two thousand eight - two thousand nine interim period and every three interim periods thereafter, the Legislative Oversight Commission on Education Accountability shall review the provisions of this subdivision to determine whether or not they properly address the needs of counties with low enrollment and a sparse population density.
(i) "Adjusted enrollment" means the net enrollment plus twice the number of pupils enrolled for special education, including gifted pupils in grades one through eight and exceptional gifted pupils in grades nine through twelve, plus the number of pupils in grades nine through twelve enrolled for honors and advanced placement programs, subject to the following:
(1) No more than four percent of net enrollment of grades one through eight may be counted as enrolled in gifted education and no more than six percent of net enrollment of grades nine through twelve may be counted as enrolled in gifted education, exceptional gifted education (subject to the limitation set forth in section one, article twenty of this chapter) and honors and advanced placement programs for the purpose of determining adjusted enrollment within a county;
(2) Nothing herein shall be construed to limit the number of students who may actually enroll in gifted, exceptional gifted, honors or advanced placement education programs in any county;
(3) No pupil may be counted more than three times for the purpose of determining adjusted enrollment;
(4) The enrollment shall be adjusted to the equivalent of the instructional term and in accordance with the eligibility requirements and rules established by the state board; and
(5) No pupil shall be counted more than once by reason of transfer within the county or from another county within the state, and no pupil shall be counted who attends school in this state from another state.
(j) "Sparse-density county" means a county whose ratio of net enrollment, excluding any increase in the net enrollment of counties pursuant to subdivision (5) of the definition of net enrollment, to the square miles of the county is less than five.
(k) "Low-density county" means a county whose ratio of net enrollment, excluding any increase in the net enrollment of counties pursuant to subdivision (5) of the definition of net enrollment, to the square miles of the county is equal to or greater than five but less than ten.
(l) "Medium-density county" means a county whose ratio of net enrollment, excluding any increase in the net enrollment of counties pursuant to subdivision (5) of the definition of net enrollment, to the square miles of the county is equal to or greater than ten but less than twenty.
(m) "High-density county" means a county whose ratio of net enrollment, excluding any increase in the net enrollment of counties pursuant to subdivision (5) of the definition of net enrollment, to the square miles of the county is equal to or greater than twenty.
~~(j)~~ (n) "Levies for general current expense purposes" means ninety-four percent of the levy rate for county boards of education calculated or set by the Legislature pursuant to the provisions of section six-f, article eight, chapter eleven of this code: Provided, That beginning the first day of July, two thousand eight, "levies for general current expense purposes" means ninety percent of the levy rate for county boards of education calculated or set by the Legislature pursuant to the provisions of section six-f, article eight, chapter eleven of this code: Provided, however, That effective the first day of July, two thousand ten, the definitions set forth in this subsection are subject to the provisions of section two-a of this article.
(o) "Technology integration specialist" means a professional educator who has expertise in the technology field and is assigned as a resource teacher to provide information and guidance to classroom teachers on the integration of technology into the curriculum.
(p) "State aid eligible personnel" means all professional educators and service personnel employed by a county board in positions that are eligible to be funded under this article and whose salaries are not funded by a specific funding source such as a federal or state grant, donation, contribution or other specific funding source not listed.

§18-9A-3a. Total state basic foundation program for fiscal years 2009 through 2013, only.

(a) Notwithstanding any other provisions of this article to the contrary, the total basic foundation program for the state for the fiscal ~~year one thousand nine hundred ninety-four--ninety-five~~ years two thousand nine through two thousand thirteen shall be the sum of the amounts computed for each county in accordance with this section, less the county's local share:
(1) For the fiscal year two thousand nine, the department of education shall compute the total basic foundation program for each county in accordance with the provisions of this article and in accordance with the provisions of this article in effect for fiscal year two thousand eight. The total basic foundation program for each county computed in accordance with this article is limited to a growth of one fifth above the amount computed for the county in accordance with the provisions in effect for fiscal year two thousand eight. The total basic foundation program for the county is the greater of the two computations.
(2) For the fiscal year two thousand ten, the department of education shall compute the total basic foundation program for each county in accordance with the provisions of this article and in accordance with the provisions of this article in effect for fiscal year two thousand eight. The total basic foundation program for each county computed in accordance with this article is limited to a growth of two fifths above the amount computed for the county in accordance with the provisions in effect for fiscal year two thousand eight. The total basic foundation program for the county is the greater of the two computations.
(3) For the fiscal year two thousand eleven, the department of education shall compute the total basic foundation program for each county in accordance with the provisions of this article and in accordance with the provisions of this article in effect for fiscal year two thousand eight. The total basic foundation program for each county computed in accordance with this article is limited to a growth of three fifths above the amount computed for the county in accordance with the provisions in effect for fiscal year two thousand eight. The total basic foundation program for the county is the greater of the two computations.
(4) For the fiscal year two thousand twelve, the department of education shall compute the total basic foundation program for each county in accordance with the provisions of this article and in accordance with the provisions of this article in effect for fiscal year two thousand eight. The total basic foundation program for each county computed in accordance with this article is limited to a growth of four fifths above the amount computed for the county in accordance with the provisions in effect for fiscal year two thousand eight. The total basic foundation program for the county is the greater of the two computations.
(5) For the fiscal year two thousand thirteen and each year thereafter, the department of education shall compute the total basic foundation program for each county in accordance with the provisions of this article and in accordance with the provisions of this article in effect for fiscal year two thousand eight. For the fiscal year two thousand thirteen only, the total basic foundation program for the county is the greater of the two computations.
~~Allowance for professional educators as determined in accordance with sections four and five-a of this article;~~
~~(2) Allowance for service personnel as determined in accordance with sections five and five-a of this article;~~
~~(3) Allowance for fixed charges as determined in accordance with the provisions of sections six and six-a of this article;~~
~~(4) Allowance for transportation cost in an amount at least equal to the appropriation for such allowance in the fiscal year one thousand nine hundred ninety-three--ninety-four;~~
~~(5) Allowance for administrative cost in accordance with the provisions of sections eight and eight-a of this article;~~
(6) Allowance for other current expense and substitute employees in an amount at least equal to the appropriation for such allowance in the fiscal year one thousand nine hundred ninety- three--ninety-four: ~~Provided,~~ ~~That the allocation of such funds for expenditure by faculty senates shall be in accordance with the provisions of section nine of this article;~~
~~(7) Allowance to improve instructional programs in an amount at least equal to the appropriation for such allowance in the fiscal year one thousand nine hundred ninety-three--ninety-four.~~
§18-9A-4. Foundation allowance for professional educators.
(a) The basic foundation allowance to the county for professional educators shall be the amount of money required to pay the state minimum salaries, in accordance with provisions of article four, chapter eighteen-a of this code, to the personnel employed, subject to the following: ~~Provided, That~~ in making this computation no county shall receive an allowance for the personnel which number is in excess of educators fifty-three and one-half professional educators to each one thousand students in adjusted enrollment;
(1) Subject to subdivision (2) of this subsection, in making this computation no county shall receive an allowance for the personnel which number is in excess of professional educators to each one thousand students in net enrollment as follows:
(A) For each high-density county, the number of personnel for which a county shall receive the allowance shall not exceed seventy-two and one tenth professional educators per each one thousand students in net enrollment;
(B) For each medium-density county, the number of personnel for which a county shall receive the allowance shall not exceed seventy-two and twenty-five one hundredths professional educators per each one thousand students in net enrollment;
(C) For each low-density county, the number of personnel for which a county shall receive the allowance shall not exceed seventy-two and four tenths professional educators per each one thousand students in net enrollment; and
(D) For each sparse-density county, the number of personnel for which a county shall receive the allowance shall not exceed seventy-two and fifty-five one hundredths professional educators per each one thousand students in net enrollment;
Provided, however, That any county not qualifying under the provisions of section fourteen of this article is eligible for a growth rate in professional personnel in any one year not to exceed twenty percent of its total potential increase under this provision, except that in no case shall the limit be fewer than five professionals; Provided further, That
(2) For the ratios applicable to each of the four density categories set forth in subdivision (1) of this subsection, the number of professional educators per each one thousand students in net enrollment increases by five one hundredths per year for each of fiscal years two thousand ten, two thousand eleven, two thousand twelve and two thousand thirteen. For each fiscal year thereafter, the ratios remain at the two thousand thirteen level.
(3) The number of and the allowance for personnel paid in part by state and county funds shall be prorated; and ~~And provided further, That~~
(4) Where two or more counties join together in support of a vocational or comprehensive high school or any other program or service, the professional educators for the school or program may be prorated among the participating counties on the basis of each one's enrollment therein and ~~that~~ the personnel shall be considered within the above-stated limit. ~~And provided further, That in the school year beginning the first day of July, one thousand nine hundred eighty-eight, and in each school year thereafter,~~
(b) Subject to subsection (c) of this section, each county board shall establish and maintain a minimum ratio of ~~fifty~~ professional instructional personnel per one thousand students in ~~adjusted~~ net enrollment as follows:
(1) For each high-density county, the minimum number of professional instructional personnel per one thousand students in net enrollment is sixty-five and eight tenths;
(2) For each medium-density county, the minimum number of professional instructional personnel per one thousand students in net enrollment is sixty-five and nine tenths;
(3) For each low-density county, the minimum number of professional instructional personnel per one thousand students in net enrollment is sixty-six;
(4) For each sparse-density county, the minimum number of professional instructional personnel per one thousand students in net enrollment is sixty-six and five one hundredths. ~~And provided further, That~~ no permanent substitute shall be included in the minimum ratio for professional instructional personnel. Permanent substitutes may be included in the computation for professional educators. For the purposes of this section, permanent substitute means a full-time employee who performs the duties of a day-to-day substitute. And provided further, That ~~no county shall have less than a total of five principals and central office administrators.~~
(c) For the ratios applicable to each of the four density categories set forth in subsection (b) of this subsection, the number of professional instructional personnel per each one thousand students in net enrollment increases by five one hundredths per year for each of fiscal years two thousand ten, two thousand eleven, two thousand twelve and two thousand thirteen. For each fiscal year thereafter, the ratios remain at the two thousand thirteen level.
(d) Any county board which does not establish and maintain ~~this~~ the applicable minimum ratio required in subsection (b) of this section shall suffer a pro rata reduction in the allowance for professional educators under this section: ~~And provided further,~~ Provided, That no county shall be penalized if it has increases in enrollment during that school year: Provided, however, That for the school year two thousand eight - two thousand nine, only, no county shall be penalized for not meeting the applicable minimum ratio required in subsection (b) of this section. And provided further, That Any county board which does not establish and maintain this minimum ratio shall utilize any and all allocations to it by provision of section fourteen of this article solely to employ professional instructional personnel until the minimum ratio is attained. Every county shall utilize methods other than reductions in force, such as attrition and early retirement, before implementing their reductions in force policy to comply with the limitations of this section. It is the intent of the Legislature that in planning reductions in force to comply with reduced ratios of professional educators to students in adjusted enrollment, county boards shall consider positions for elimination in the following order: (1) Central office administrators, (2) assistant principals, and (3) principals.
(e) No county shall increase the number of administrative personnel employed as either professional educators or pay grade "H" service personnel above the number which were employed, or for which positions were posted, on the thirtieth day of June, one thousand nine hundred ninety, and, therefore, county boards shall whenever possible utilize classroom teachers for curriculum administrative positions through the use of modified or extended contracts. Provided, That the governor shall submit a recommendation to the Legislature at the beginning of the regular session thereof in the year one thousand nine hundred ninety-one, which proposes a method for establishing a responsible level of administrative support for each county school system and a pay scale differentiation on a daily rate between classroom positions and administrative positions when all other factors are equal.
(f) As the number of professional educators per each one thousand students in net enrollment increases during fiscal years two thousand nine through two thousand thirteen, any additional positions that are created as a result of that increase shall be positions that will enhance student achievement and are consistent with the needs as identified in each county board's electronic county strategic improvement plan. County boards are encouraged to fill at least some of the additional positions with technology integration specialists.
(g) During the two thousand eight - two thousand nine interim period, and every three interim periods thereafter, the Legislative Oversight Commission on Education Accountability shall review the four density categories created in section two of this article, the ratios for professional educators established in this section and the ratios for service personnel established in section five of this article.
§18-9A-5. Foundation allowance for service personnel.
(a) The basic foundation allowance to the county for service personnel shall be the amount of money required to pay the annual state minimum salaries in accordance with the provisions of article four, chapter eighteen-a of this code, to such service personnel employed, subject to the following: ~~Provided, That no county shall receive an allowance for an amount in excess of thirty-four service personnel per one thousand students in adjusted enrollment:~~ ~~Provided, however,~~ ~~That~~ the state superintendent of schools is authorized in accordance with rules and regulations established by the state board and upon request of a county superintendent to waive the maximum ratio of thirty-four service personnel per one thousand students in adjusted enrollment and the twenty percent per year growth cap provided in this section, to the extent appropriations are provided, in those cases where the state superintendent determines that student population density and miles of bus route driven or the transportation of students to a county or a multi-county vocational-technical center justify the waiver, except that no waiver shall be granted to any county whose financial statement shows a net balance in general current expense funds greater than three percent at the end of the previous fiscal year: ~~Provided further,~~ That on or before the first day of each regular session of the Legislature, the state board, through the state superintendent, shall make to the Legislature a full report concerning the number of waivers granted and the fiscal impact related thereto. Every county shall utilize methods other than reduction in force, such as attrition and early retirement, before implementing their reductions in force policy to comply with the limitations of this section.
For any county which has in excess of thirty-four service personnel per one thousand students in adjusted enrollment, the allowance shall be computed based upon the average state minimum pay scale salary of all service personnel in the county: ~~Provided,~~ That for any county having fewer than thirty-four service personnel per one thousand students in adjusted enrollment, in any one year, the number of service personnel used in making this computation may be increased the succeeding years by no more than twenty percent per year of its total potential increase under this provision, except that in no case shall the limit be fewer than two service personnel until the county attains the maximum ratio set forth: ~~Provided, however,~~ ~~That~~
(1) For the school year beginning on the first day of July, two thousand eight, and thereafter, no county shall receive an allowance for an amount in excess of service personnel per one thousand students in net enrollment, as follows:
(A) For each high-density county, the number of personnel for which a county shall receive the allowance shall not exceed forty- three and ninety-seven one hundredths service personnel per one thousand students in net enrollment;
(B) For each medium-density county, the number of personnel for which a county shall receive the allowance shall not exceed forty-four and fifty-three one hundredths service personnel per one thousand students in net enrollment;
(C) For each low-density county, the number of personnel for which a county shall receive the allowance shall not exceed forty- five and one tenth service personnel per one thousand students in net enrollment; and
(D) For each sparse-density county, the number of personnel for which a county shall receive the allowance shall not exceed forty-five and sixty-eight one hundredths service personnel per one thousand students in net enrollment: and
(2) Where two or more counties join together in support of a vocational or comprehensive high school or any other program or service, the service personnel for the school or program may be prorated among the participating counties on the basis of each one's enrollment therein and that the personnel shall be considered within the above-stated limit.
§18-9A-6. Foundation allowance for fixed charges.
The total allowance for fixed charges shall be the sum of the following:
(1) The sum of the foundation allowance for professional educators and the foundation allowance for other personnel, as determined in sections ~~four and five above~~ four, five and eight of this article, multiplied by the current social security rate of contribution; plus
(2) The sum of the foundation allowance for professional educators and the foundation allowance for other personnel, as determined in sections ~~four and five above~~ four, five and eight of this article, multiplied by four hundredths of one percent as an allowance for unemployment compensation contribution; plus
(3) The sum of the foundation allowance for professional educators and the foundation allowance for other personnel, as determined in sections ~~four and five above~~ four, five and eight of this article, multiplied by the rate which is derived by dividing the total estimated contributions for workers' compensation for all county boards by the sum of the foundation allowance for professional educators and other personnel, as determined in sections ~~four and five above~~ four, five and eight of this article. The total estimated contribution for workers compensation is determined by multiplying each county board's allowance for professional educators and other personnel, as determined by sections ~~four and five above~~ four, five and eight of this article, by the county's actual contribution rate by using data of the most recent year for which it is available; plus
(4) The teachers retirement fund allowance as determined in section six-a of this article.
18-9A-7. Foundation allowance for transportation cost.
(a) The allowance in the foundation school program for each county for transportation shall be the sum of the following computations:
(1) Eighty-five percent of the transportation cost within each high-density county and ninety percent of the transportation cost within each low-density county for maintenance, operation and related costs, exclusive of all salaries: ~~Provided,~~ ~~That~~
(1) A percentage of the transportation costs incurred by the county for maintenance, operation and related costs exclusive of all salaries, including the costs incurred for contracted transportation services and public utility transportation, as follows:
(A) For each high-density county, eighty-seven and one half percent;
(B) For each medium-density county, ninety percent;
(C) For each low-density county, ninety-two and one half percent;
(D) For each sparse-density county, ninety-five percent; (E) For any county for the transportation cost for maintenance, operation and related costs, exclusive of all salaries, for transporting students to and from classes at a multi- county vocational center, the percentage provided in paragraphs (A) through (D) of this subdivision as applicable for the county plus an additional ten percent; and
(F) For any county for that portion of its school bus system that uses an alternative fuel such as compressed natural gas or other acceptable alternative fuel, the percentage provided in paragraphs (A) through (D) of this subdivision as applicable for the county plus an additional ten percent: for the operation of all or any portion of its school bus system, the allowance in the foundation school program for the county for that portion of its school bus system shall be ninety-five percent of the transportation cost for maintenance, operation and related costs, exclusive of all salaries, incurred by the use of the alternatively fueled school buses: Provided, ~~however,~~ That any county using an alternative fuel and qualifying for the additional allowance under this subdivision shall submit a plan regarding the intended future use of alternatively fueled school buses;
(2) The total cost, within each county, of insurance premiums on buses, buildings and equipment used in transportation; ~~Provided,~~ ~~That the premiums were procured through competitive bidding;~~
(3) An amount equal to eight and one-third percent of the current replacement value of the bus fleet within each county as determined by the state board. The amount shall only be used for the replacement of buses. Buses purchased after the first day of July, one thousand nine hundred ninety-nine, that are driven one hundred eighty thousand miles, regardless of year model, will be subject to the replacement value of eight and one-third percent as determined by the state board. ~~Provided,~~ That for the school year beginning on the first day of July, two thousand four, only, the allowance in the foundation school program for each county for transportation shall not include an amount for the replacement of buses. In addition, in any school year in which its net enrollment increases when compared to the net enrollment the year immediately preceding, a school district may apply to the state superintendent for funding for an additional bus or buses. The state superintendent shall make a decision regarding each application based upon an analysis of the individual school district's net enrollment history and transportation needs: Provided, ~~however,~~ That the superintendent shall not consider any application which fails to document that the county has applied for federal funding for additional buses. If the state superintendent finds that a need exists, a request for funding shall be included in the budget request submitted by the state board for the upcoming fiscal year; and
(4) Eighty-five percent of the cost of contracted transportation services and public utility transportation within each high-density county and ninety percent of the cost of contracted transportation services and public utility transportation within each low-density county;
~~(5)~~ (4) Aid in lieu of transportation equal to the state average amount per pupil for each pupil receiving the aid within each county. and
(6) Ninety-five ~~percent of the transportation cost for maintenance, operation and related costs, exclusive of all salaries, for transporting students to and from classes at a multicounty vocational center.~~
(b) The total state share for this purpose shall be the sum of the county shares: Provided, That no county shall receive an allowance which is greater than one-third above the computed state average allowance per transportation mile multiplied by the total transportation mileage in the county exclusive of the allowance for the purchase additional buses. ~~Provided, however,~~ ~~That~~
(c) One half of one percent of the transportation allowance distributed to each county shall be for the purpose of trips related to academic classroom curriculum and not related to any extracurricular activity. ~~Provided further,~~ That for the school year beginning on the first day of July, two thousand four, only the transportation allowance of each county shall include an allocation for the purpose of trips related to academic classroom curriculum and not related to any extracurricular activity. The allocation shall equal the amount distributed to the county for this purpose in the school year beginning on the first day of July, two thousand three: ~~And Provided further,~~ ~~That~~ Any remaining funds credited to a county for the purpose of trips related to academic classroom curriculum during the fiscal year shall be carried over for use in the same manner the next fiscal year and shall be separate and apart from, and in addition to, the appropriation for the next fiscal year. ~~And Provided further,~~ ~~That~~ The state board may request a county to document the use of funds for trips related to academic classroom curriculum if the board determines that it is necessary.
(d) The amendments made to this section during the two thousand eight regular session of the Legislature are intended to be temporary while the transportation issue is further studied during the two thousand eight-two thousand nine interim period.

§18-9A-8. Foundation allowance for professional student support services.

(a) The basic foundation allowance to the county for professional student support personnel shall be the amount of money determined in accordance with the following:
(1) The sum of the state minimum salaries, as determined in accordance with the provisions of article four, chapter eighteen of this code, for all state aid eligible school nurse and counselor positions in the county during the two thousand eight fiscal year which number shall be reduced in the same proportion as the number of professional educators allowed to be funded under section four of this article to the total number of professional educators employed that are state aid eligible. In performing this calculation, the numerator shall be the number of professional educators actually funded under section four of this article and the denominator shall be the total number of professional educators employed that are eligible to be funded under section four of this article;
(2) The amount derived from the calculation in subdivision (1) of this subsection is increased by one half percent;
(3) The amount derived from the calculation in subdivision (2) of this subsection is the basic foundation allowance to the county for professional student support personnel for the two thousand nine fiscal year;
(4) For fiscal years two thousand ten, two thousand eleven, two thousand twelve and two thousand thirteen, the basic foundation allowance to the county for professional student support personnel increases by one-half percent per year over the allowance for the previous year; and
(5) For all fiscal years thereafter, the basic foundation allowance to the county for professional student support personnel remains the same amount as in the two thousand thirteen fiscal year.
(b) The additional positions for counselors that may be created as a result of the one percent increase provided pursuant to this section shall be assigned to schools where the counselor can:
(1) Enhance student achievement;
(2) Provide early intervention for students in grades pre- kindergarten through five; and
(3) Enhance student development and career readiness.

§18-9A-9. Foundation allowance for other current expense and substitute employees.

The total allowance for other current expense and substitute employees shall be the sum of the following: ~~Provided,~~ ~~That each of the three amounts set forth in subdivisions (1), (2) and (3) of this section shall not exceed the preceding year's allowance by more than four percent:~~
(1) For current expense, ~~for the year one thousand nine hundred ninety--ninety-one and thereafter~~, ten percent of the sum of the computed state allocation for professional educators and service personnel as determined in sections four and five of this article. Distribution to the counties shall be made proportional to the average of each county's average daily attendance for the preceding year and the county's second month net enrollment; plus
(2) For professional educator substitutes or current expense, two and five-tenths percent of the computed state allocation for professional educators ~~as determined in section~~ ~~four~~ and other professional personnel as determined in sections four and eight of this article. Distribution to the counties shall be made proportional to the number of professional educators and other professional personnel authorized for the county in compliance with sections four and ~~five-a~~ eight of this article; plus
(3) For service personnel substitutes or current expense, two and five-tenths percent of the computed state allocation for service personnel as determined in section five of this article. Distribution to the counties shall be made proportional to the number of service personnel authorized for the county in compliance with ~~sections~~ section five ~~and five-a~~ of this article; plus
(4) For academic materials, supplies and equipment for use in instructional programs, two hundred dollars multiplied by the number of professional instructional personnel employed in the schools of the county. Distribution shall be made to each county for allocation to the faculty senate of each school in the county on the basis of two hundred dollars per professional instructional personnel employed at the school. Faculty senate means a faculty senate created pursuant to section five, article five-a of this chapter. Decisions for the expenditure of such funds shall be made at the school level by the faculty senate in accordance with the provisions of said section five, article five-a and shall not be used to supplant the current expense expenditures of the county. Beginning on the first day of September, one thousand nine hundred ninety-four, and every September thereafter, county boards shall forward to each school for the use by faculty senates the appropriation specified in this section. Each school shall be responsible for keeping accurate records of expenditures.
§18-9A-10. Foundation allowance to improve instructional programs.
(a) The total allowance to improve instructional programs shall be the sum of the following:
(1) For instructional improvement in accordance with county and school electronic strategic improvement plans required by section five, article two-e of this chapter, an amount equal to fifteen percent of the increase in the local share amount for the next school year above any required allocation pursuant to section six-b of this article shall be added to the amount of the appropriation for this purpose for the immediately preceding school year. The sum of these amounts shall be distributed to the counties as follows:
(A) One hundred fifty thousand dollars shall be allocated to each county;
(B) Distribution to the counties of the remainder of these funds shall be made proportional to the average of each county's average daily attendance for the preceding year and the county's second month net enrollment. Moneys allocated by provision of this section shall be used to improve instructional programs according to the county and school electronic strategic improvement plans required by section five, article two-e of this chapter and approved by the state board: Provided, That notwithstanding any other provision of this code to the contrary, moneys allocated by provision of this section may also be used in the implementation and maintenance of the uniform integrated regional computer information system.
Up to twenty-five percent of this allocation may be used to employ professional educators and service personnel in counties after all applicable provisions of sections four and five of this article have been fully utilized.
Prior to the use of any funds from this section for personnel costs, the county board must receive authorization from the state superintendent of schools. The state superintendent shall require the county board to demonstrate: (1) The need for the allocation; (2) efficiency and fiscal responsibility in staffing; (3) sharing of services with adjoining counties and the regional educational service agency for that county in the use of the total local district board budget; and (4) employment of technology integration specialists to meet the needs for implementation of the West Virginia 21st Century Strategic Technology Learning Plan. County boards shall make application for available funds for the next fiscal year by the first day of May of each year. On or before the first day of June, the state superintendent shall review all applications and notify applying county boards of the distribution of the allocation. The funds shall be distributed during the fiscal year appropriate. The state superintendent shall require the county board to demonstrate the need for an allocation for personnel based upon the county's inability to meet the requirements of state law or state board policy: Provided, That the funds available for personnel under this section may not be used to increase the total number of professional non-instructional personnel in the central office beyond four. The plan shall be made available for distribution to the public at the office of each affected county board; plus
(2) For the purposes of the West Virginia 21st Century Strategic Technology Learning Plan provided for in section seven, article two-e of this chapter, an amount equal to fifteen percent of the increase in the local share amount for the next school year above any required allocation pursuant to section six-b of this article shall be added to the amount of the appropriation for this purpose for the immediately preceding school year. The sum of these amounts shall be allocated to the counties as provided in section seven, article two-e of this chapter to meet the objectives of the West Virginia 21st Century Strategic Technology Learning Plan; plus
(3) One percent of the state average per pupil state aid multiplied by the number of students enrolled in dual credit, advanced placement and international baccalaureate courses, as defined by the state board, distributed to the counties proportionate to enrollment in these courses in each county; plus
~~(3)~~ (4) An amount not less than the amount required to meet debt service requirements on any revenue bonds issued prior to the first day of January, one thousand nine hundred ninety-four, and the debt service requirements on any revenue bonds issued for the purpose of refunding revenue bonds issued prior to the first day of January, one thousand nine hundred ninety-four, shall be paid into the School Building Capital Improvements Fund created by section six, article nine-d of this chapter and shall be used solely for the purposes of that article. The School Building Capital Improvements Fund shall not be utilized to meet the debt services requirement on any revenue bonds or revenue refunding bonds for which moneys contained within the School Building Debt Service Fund have been pledged for repayment pursuant to that section.
(b) When the school improvement bonds secured by funds from the School Building Capital Improvements Fund mature, the State Board of Education shall annually deposit an amount equal to twenty-four million dollars from the funds allocated in this section into the School Construction Fund created pursuant to the provisions of section six, article nine-d of this chapter to continue funding school facility construction and improvements.
(c) Any project funded by the School Building Authority shall be in accordance with a comprehensive educational facility plan which must be approved by the state board and the School Building Authority.
§18-9A-21. Funding for alternative education programs.
(a) An appropriation may be made to the state department to be distributed to county boards for the operation of alternative education and prevention programs established in accordance with policies and procedures adopted by the state board under section six, article two of this chapter. The appropriation shall be an amount equal to twelve dollars per student in net enrollment, subject to appropriation by the Legislature. The state board shall distribute ninety-seven percent of the total appropriation to the county boards proportionate to each county's net enrollment. The remaining three percent of the appropriation shall be retained by the state department to support the provision of services to the county boards in administering programs established in accordance with policies and procedures adopted by the state board under section six, article two of this chapter: Provided, That nothing in this section shall be construed to require any specific level of funding by the Legislature. Provided, however, That ninety percent of any appropriation which may be made for the purposes set forth in this section shall be distributed to county boards on the basis of net enrollment and ten percent of this appropriation shall be distributed on a competitive basis to county boards for the operation of pilot or innovative alternative education programs: Provided further, That for the fiscal year beginning the first day of July, two thousand, the total appropriation which may be made for the purposes set forth in this section shall be distributed to the county boards on the basis of net enrollment.
(b) Each county board shall apply to the state superintendent for receipt of its share of the distribution in the manner set forth by the state superintendent which is consistent with the policies and procedures adopted by the state board for the establishment and maintenance of alternative education programs.
ARTICLE 20. EDUCATION OF EXCEPTIONAL CHILDREN.
§18-20-5. Powers and duties of state superintendent.
(a) The state superintendent of schools shall organize, promote, administer and be responsible for:
(1) Stimulating and assisting county boards of education in establishing, organizing and maintaining special schools, classes, regular class programs, home-teaching and visiting-teacher services.
(2) Cooperating with all other public and private agencies engaged in relieving, caring for, curing, educating and rehabilitating exceptional children, and in helping coordinate the services of such agencies.
(3)(A) Preparing the necessary rules, policies, formula for distribution of available appropriated funds, reporting forms and procedures necessary to define minimum standards in providing suitable facilities for education of exceptional children and ensuring the employment, certification and approval of qualified teachers and therapists subject to approval by the state board of education: Provided, That no state rule, policy or standard under this article or any county board rule, policy or standard governing special education may exceed the requirements of federal law or regulation.
(B) The state superintendent shall ~~conduct a comprehensive review and comparison of~~ annually review the rules, policies and standards of the state ~~with~~ and federal law ~~and report the findings~~ for serving the needs of exceptional children enrolled in the public schools and shall report to the legislative oversight commission on education accountability ~~at its February~~ by the first day of December or as soon thereafter as requested by the commission, two thousand ~~five~~ eight, and in each year thereafter, ~~interim meeting or as soon thereafter as requested by the commission~~ the findings of the review along with an accounting of the services provided and the costs thereof for exceptional children enrolled in the public schools of this state during the latest available school year. An appropriation shall be made to the department of education to be distributed to county boards to support children with high acuity needs that exceed the capacity of county to provide with funds available. Each county board shall apply to the state superintendent for receipt of this funding in a manner set forth by the state superintendent that assesses and takes into account varying acuity levels of the exceptional students. Any remaining funds at the end of a fiscal year from the appropriation shall be carried over to the next fiscal year. When possible, federal funds shall be distributed to county boards for this purpose before any of the state appropriation is distributed. The state board shall promulgate a rule in accordance with the provisions of article three-b, chapter twenty-nine-a of this code that implements the provisions of this subdivision relating to distributing the funds to the county boards. The rule at least shall include a definition for "children with high acuity needs".
(4) Receiving from county boards of education their applications, annual reports and claims for reimbursement from such moneys as are appropriated by the Legislature, auditing such claims and preparing vouchers to reimburse said counties the amounts reimbursable to them.
(5) Assuring that all exceptional children in the state, including children in mental health facilities, residential institutions, private schools and correctional facilities as provided in section thirteen-f, article two of this chapter receive an education in accordance with state and federal laws: Provided, That the state superintendent shall also assure that adults in correctional facilities and regional jails receive an education to the extent funds are provided therefor.
(6) Performing other duties and assuming other responsibilities in connection with this program as needed.
(7) Receive the county plan for integrated classroom submitted by the county boards of education and submit a state plan, approved by the state board of education, to the legislative oversight commission on education accountability no later than the first day of December, one thousand nine hundred ninety-five.
(b) Nothing contained in this section shall be construed to prevent any county board of education from establishing and maintaining special schools, classes, regular class programs, home-teaching or visiting-teacher services out of funds available from local revenue.
The bill (Eng. Com. Sub for H. B. No. 4588), as amended, was then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4588) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4588) passed.
The following amendment to the title of the bill, from the Committee on Education, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4588--A Bill to repeal §18-9A-5a, §18-9A-5b, §18-9A-10a and §18-9A-22 of the Code of West Virginia, 1931, as amended; to amend and reenact §18-1-1 of said code; to amend and reenact §18-9A-2, §18-9A-3a, §18-9A-4, §18-9A-5, §18-9A-6, §18-9A-7, §18-9A-8, §18-9A-9, §18-9A-10 and §18-9A-21 of said code; and to amend and reenact §18-20-5 of said code all relating to public school support; defining terms; eliminating adjusted enrollment and certain waiver provisions; eliminating obsolete provisions; providing alternate computation of county and total basic foundation program funding for certain years; limiting basis of foundation allowances for personnel to ceratin ratios of net student enrollment instead of adjusted enrollment; establishing different net enrollment limits on the basis of differences in students per square mile and expiring existing ratios and funding provisions; providing for certain adjustments to net enrollment for allowances in low enrollment counties; requiring review of certain issues; establishing minimum ratios of professional instructional personnel per students in net enrollment; providing criteria for certain new positions; establishing student density categories for determining allowance for transportation; modifying incentive for alternative fuel use and allowance for transporting students to certain multi-county centers; removing obsolete provisions for certain competitive bidding; deleting allowance for administrative costs; providing foundation allowance for professional student support personnel, including fixed charges; including professional student support personnel costs in determining professional substitute allowance; placing funding supplement for advanced placement and dual credit enrollment in allowance to improve instructional programs; repealing provisions for certain additional nursing positions; providing enrollment basis for alternative program funding and adding prevention programs; expiring certain provisions for funding for economies of scale in certain counties; requiring annual review and report by state superintendent on exceptional student services and accounting of services and costs; requiring appropriation for distribution upon application to support children with high acuity needs that exceed county capacity from funds available; and requiring rule to implement distribution.
Senator Chafin moved that the bill take effect July 1, 2008.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4588) takes effect July 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
The Senate proceeded to the fifth order of business.
Filed Conference Committee Reports
The Clerk announced the following conference committee report had been filed at 8:59 p.m. today:
Eng. House Bill No. 4557, Relating to continuing education for insurance producers.
At the request of Senator Helmick, unanimous consent being granted, the Senate returned to the consideration of
Eng. Com. Sub. for House Bill No. 4433, Increasing the maximum amount of a medical student loan that may be cancelled.
On second reading, having been reported from the Committee on Finance in earlier proceedings today.
At the request of Senator Helmick, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 4433) was taken up for immediate consideration and read a second time.
The following amendment to the bill, from the Committee on Education, was reported by the Clerk and adopted:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 3. HEALTH PROFESSIONALS STUDENT LOAN PROGRAMS.

§18C-3-1. Health Education Loan Program; establishment; administration; eligibility and loan cancellation; required report.

(a) For the purposes of this section, "Vice Chancellor of for Administration" means the person employed pursuant to section two, article four, chapter eighteen-b of this code.
(b) There is continued a special revolving fund account ~~under~~ administered by the Commission in the state treasury to be known as the Health Education Student Loan Fund which shall be used to carry out the purposes of this section. The fund consists of the following:
(1) All funds on deposit in the medical student loan fund in the state treasury or which are due or become due for deposit in the fund as obligations made under the previous enactment of this section;
(2) Those funds provided for medical education pursuant to the provisions of section four, article ten, chapter eighteen-b of this code;
(3) Appropriations provided by the Legislature;
(4) Repayment of any loans made under this section;
(5) Amounts provided by medical associations, hospitals or other medical provider organizations in this state, or by political subdivisions of the state, under an agreement which requires the recipient to practice his or her health profession in this state or in the political subdivision providing the funds for a predetermined period of time and in such capacity as set forth in the agreement; and
(6) Other amounts which may be available from external sources.
(c) Balances remaining in the fund at the end of the fiscal year do not expire or revert. All costs associated with administering this section shall be paid from the Health Education Student Loan Fund.
~~(c)~~ (d) The Vice Chancellor for Administration may utilize any funds in the Health Education Student Loan Fund for the purposes of the Medical Student Loan Program. The Commission shall give priority for the loans to residents of this state, as defined by the Commission. An individual is eligible for loan consideration if the individual meets the following conditions:
(1) Demonstrates financial need;
(2) Meets established academic standards;
(3) Is enrolled or accepted for enrollment at ~~one of the aforementioned schools of medicine~~ the West Virginia University School of Medicine, the Marshall University School of Medicine, or the West Virginia School of Osteopathic Medicine in a program leading to the degree of medical doctor (M.D.) or doctor of osteopathy (D.O.);
(4) ~~The individual~~ Has not yet received one of the degrees provided in subdivision (3) of this subsection; and
(5) Is not in default of any previous student loan.
~~(d)~~ (e) At the end of each fiscal year, any individual who has received a medical student loan and who has rendered services as a medical doctor or a doctor of osteopathy in this state in a medically underserved area or in a medical specialty in which there is a shortage of physicians, as determined by the Division of Health at the time the loan was granted, may submit to the Commission a notarized, sworn statement of service on a form provided for that purpose. Upon receipt of the statement the Commission shall cancel ~~five~~ ten thousand dollars of the outstanding loan or loans for every full twelve consecutive calendar months of such service.
~~(e)~~ (f) No later than thirty days following the end of each fiscal year, the Vice Chancellor for Administration shall prepare and submit a report to the Commission for inclusion in the statewide report card required under section eight, article ~~one-b~~ one-d, chapter eighteen-b of this code to be submitted to the Legislative Oversight Commission on Education Accountability established under section eleven, article three-a, chapter twenty-nine-a of this code. At a minimum, the report shall include the following information:
(1) The number of loans awarded;
(2) The total amount of the loans awarded;
(3) The amount of any unexpended moneys in the fund; and
(4) The rate of default during the previous fiscal year on the repayment of previously awarded loans.
The bill (Eng. Com. Sub. for H. B. No. 4433), as amended, was then ordered to third reading.
At the request of Senator Helmick, unanimous consent being granted, the Senate returned to the consideration of
Eng. Com. Sub. for House Bill No. 4434, Establishing a higher education energy and water savings revolving loan fund.
On second reading, having been reported from the Committee on Finance in earlier proceedings today.
At the request of Senator Helmick, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 4434) was taken up for immediate consideration and read a second time.
The following amendment to the bill, from the Committee on Education, was reported by the Clerk and adopted:
By striking out everything after the enacting section and inserting in lieu thereof the following:

ARTICLE 5. HIGHER EDUCATION BUDGETS AND EXPENDITURES.

§18B-5-11. Energy and Water Savings Revolving Loan Program Fund.
(a) There is created in the state treasury a special revolving loan fund known as the "Energy and Water Savings Revolving Loan Fund". The fund is administered by the Commission and used to effectuate the purposes of this section. The fund consists of moneys received from the following sources:
(1) All appropriations provided by the Legislature for energy and water savings revolving loans;
(2) Repayment of loans made to state institutions of higher education pursuant to this section;
(3) Any moneys available from external sources; and
(4) All interest and other income earned from investment of moneys in the fund.
(b) The Commission shall utilize moneys in the fund to provide loans to state institutions of higher education under the jurisdiction of the Commission or the Council to finance projects that will achieve significant reductions in campus energy and water consumption and costs.
(c) The Commission shall propose a rule for legislative approval in accordance with section six, article one of this chapter and article three-a, chapter twenty-nine-a of this code to implement the provisions of this section. The rule shall provide at least the following:
(1) Project information required in a loan application;
(2) Criteria for evaluating loan applications;
(3) A method for calculating the terms of loan repayment; and
(4) Other provisions the Commission considers necessary to administer the program in accordance with this section.
(d) Projects shall be considered on a competitive basis. Highest priority is given to projects guaranteeing the greatest reductions in energy and water consumption and costs and the earliest loan repayments.
(e) Any balance, including accrued interest and any other returns, in the Energy and Water Savings Revolving Loan Fund at the end of each fiscal year shall not expire to the General Revenue Fund, but shall remain in the loan fund and be expended for the purposes provided by this section. The Commission may use up to four percent of the total loan amount in a fiscal year for administrative expenses incurred in that fiscal year.
(f) Fund balances may be invested with the state's consolidated investment fund. Any earnings on the investments shall be used solely for the purpose defined in subsection (b) of this section.
(g) The Legislature finds that an emergency exists and, therefore, the Commission shall propose an emergency rule to implement the provisions of this section in accordance with section six, article one of this chapter and article three-a, chapter twenty-nine-a of this code by the first day of October, two thousand eight. The emergency rule may not be implemented without prior approval of the Legislative Oversight Commission on Education Accountability.
The bill (Eng. Com. Sub. for H. B. No. 4434), as amended, was then ordered to third reading.
At the request of Senator Helmick, unanimous consent being granted, the Senate returned to the consideration of
Eng. House Bill No. 4449, Allowing the Higher Education Policy Commission and WV Council for Community and Technical College Education to enter into lease-purchase agreements.
On second reading, having been reported from the Committee on Finance in earlier proceedings today.
At the request of Senator Helmick, unanimous consent being granted, the bill (Eng. H. B. No. 4449) was taken up for immediate consideration, read a second time and ordered to third reading.
On motion of Senator Chafin, a leave of absence for the day was granted Senator Sharpe.
Pending announcement of meetings of standing committees of the Senate, including the Committee on Rules,
On motion of Senator Chafin, the Senate adjourned until tomorrow, Saturday, March 8, 2008, at 11 a.m.
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