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Eighty-first Legislature

First Regular Session

Held at Charleston

Published by the Clerk of the House

 

West Virginia Legislature

JOURNAL

of the

House of Delegates

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__________*__________



 

Tuesday, February 26, 2013

FOURTEENTH DAY

[Mr. Speaker, Mr. Thompson, in the Chair]

 

 

            The House of Delegates met at 11:00 a.m., and was called to order by the Honorable Rick Thompson, Speaker.

            Prayer was offered and the House was led in recitation of the Pledge of Allegiance.

            The Clerk proceeded to read the Journal of Monday, February 25, 2013, being the first order of business, when the further reading thereof was dispensed with and the same approved.

            At the request of Delegate Boggs, and by unanimous consent, the House of Delegates proceeded to the Seventh Order of Business for the purpose of introduction of resolutions.

Resolutions Introduced

            Delegates Gearheart, Householder, Ellington, Howell, Espinosa, Staggers, Overington, Manypenny, Sumner, Moore and Paxton offered the following resolution, which was read by its title and referred to the Committee on Rules:

            H. C. R. 43 - “Designating ‘Take Me Home, Country Roads’ written by John Denver, Taffy Nivert, and Bill Danoff and initially recorded by John Denver, an official state song of West Virginia.”

            Whereas, There are currently three official West Virginia state songs, designated by House Concurrent Resolution No. 19, adopted February 28, 1963: “This is My West Virginia,” “The West Virginia Hills,” and “West Virginia, My Home Sweet Home;” and

            Whereas, “Take Me Home, Country Roads” has a pleasing and memorable tune and the lyrics are an apt poetic description of our landscape and heritage; and

            Whereas, “Take Me Home, Country Roads” was written in 1970 and released in 1971, was included on John Denver’s breakout album “Poems, Prayers and Promises”, and reached #2 as a single on the Unites States Billboard “Hot 100” chart; and

            Whereas, “Take Me Home, Country Roads” has remained a popular and oft-repeated song for the last forty years with words and a tune well known nationwide and easily sung by most West Virginians living both in and out of the state; and

            Whereas, “Take Me Home, Country Roads” is performed regularly at most important events within the state, such as the memorial service for Senator Robert C. Byrd, the dedication ceremony of Mountaineer Field, and the pregame and post game ceremonies at athletic events at West Virginia University; and

            Whereas, The lyrics to “Take Me Home, Country Roads” are often quoted by popular celebrities and political figures, such as former Senator and Secretary of State Hillary Clinton, when referring to our state; and

            Whereas, The song has been covered by artists from Ray Charles to Olivia Newton-John to the Hermes House Band to the Black Tartan Clan; and

            Whereas, The song is an international hit, evidenced by its status as one of the most popular tunes played at Munich's Octoberfest; and

            Whereas, “Take Me Home, Country Roads” is featured in award-winning films, such as the Japanese hit “Whispers in the Heart”; and

            Whereas, “Take Me Home, Country Roads” fosters a positive image of West Virginia to a national and international audience; therefore, be it

            Resolved by the Legislature of West Virginia:

            That “Take Me Home, Country Roads,” written by John Denver, Taffy Nivert and Bill Canoff be designated an official state song; and, be it

            Further Resolved, That the Clerk of the House of Delegates forward a certified copy of this resolution to the Governor of the State of West Virginia.

            Delegates Boggs, Barrett, Campbell, Caputo, Craig, Diserio, Eldridge, Faircloth, Ferns, Ferro, Fleischauer, Fragale, Hamilton, Hartman, Jones, Lawrence, Longstreth, Lynch, Manypenny, Marcum, Marshall, Moore, Morgan, Moye, Paxton, Perry, Pethtel, L. Phillips, R. Phillips, D. Poling, Poore, Reynolds, Skaff, Skinner, M. Smith, Sponaugle, Staggers, Stephens, Stowers, Tomblin, Walker, Wells, White and Young offered the following resolution, which was read by the Clerk as follows:

            H. R. 12 - “Designating February 26, 2013 as ‘Community Action Day’.”

            Whereas, Community Action Agencies have been serving low income families throughout West Virginia’s fifty-five counties for more than fifty years, striving to identify the cause of poverty and assisting the impoverished in achieving self-sufficiency; and

            Whereas, Community Action Agencies conduct numerous programs to meet the needs of low income West Virginians including Head Start, home weatherization, utility assistance, job training and placement, nutrition for children and the e1der1y, education assistance, family mentoring and many others; and

            Whereas, The employees of Community Action Agencies fight to improve the lives of all West Virginians and are gifted with the ability to see need and find fulfilment, to see sadness and find hope, and to see helplessness and find strength; therefore, be it

            Resolved by the House of Delegates:

            That the House of Delegates hereby designates February 26, 2013 as “Community Action Day”; and, be it

            Further Resolved, That the House of Delegates invites all members of the West Virginia Legislature and all citizens of West Virginia to join in recognizing the value and importance of community action programs in West Virginia; and, be it

            Further Resolved, That the Clerk of the House of Delegates forward a certified copy of this resolution to the West Virginia Community Action Partnership.

            At the request of Delegate Boggs, and by unanimous consent, reference of the resolution (H. R. 12) to a committee was dispensed with, and it was taken up for immediate consideration and adopted.

Committee Reports

            Delegate Poling, Chair of the Committee on Education, submitted the following report, which was received:

            Your Committee on Education has had under consideration:

            H. B. 2563, Reducing the daily administrative time required of school counselors and increasing the time actually spent in counseling at-risk students, 

            And,

            H. B. 2566, Relating to institutional operating budgets,

            And reports the same back, with amendment, with the recommendation that they each do pass, as amended, but that they first be referred to the Committee on Finance.

            In accordance with the former direction of the Speaker, the bills (H. B. 2563 and H. B. 2566) were each referred to the Committee on Finance.

            Delegate Miley, Chair of the Committee on the Judiciary, submitted the following report, which was received:

            Your Committee on the Judiciary has had under consideration:

            H. B. 2314, Authorizing a family court judge to order a child to be taken into custody in emergency situations,

            And reports back a committee substitute therefor, with a new title, as follows:

            Com. Sub. for H. B. 2314 - “A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §49-6-9a, relating to authorizing a family court judge to order the emergency custody of a child in the physical custody of a party to an action or proceeding before the family court; requiring the Department of Health and Human Resources to immediately respond and assist the family court judge in emergency placement of the child; and providing additional procedures when a child is ordered taken into emergency custody,”

            With the recommendation that the committee substitute do pass.

            Delegate Miley, Chair of the Committee on the Judiciary, submitted the following report, which was received:

            Your Committee on the Judiciary has had under consideration:

            H. B. 2487, Prohibiting the use of laetrile,

            And reports the same back with the recommendation that it do pass.

            Delegate Miley, Chair of the Committee on the Judiciary, submitted the following report, which was received:

            Your Committee on the Judiciary has had under consideration:

            H. B. 2460, Creating a new offense for child neglect,

            And reports the same back, with amendment, with the recommendation that it do pass, as amended, but that it first be referred to the Committee on Finance.

            In accordance with the former direction of the Speaker, the bill (H. B. 2460) was referred to the Committee on Finance.

Messages from the Senate

            A message from the Senate, by

            The Clerk of the Senate, announced the passage by the Senate and requested the concurrence of the House of Delegates in the passage, of 

            Com. Sub. for S. B. 145 - “A Bill to amend and reenact §3-1-50 of the Code of West Virginia, 1931, as amended, relating to the administrative procedure in response to election-related complaints; clarifying language to allow the procedure to be utilized for certain federal election violations; and providing an exception to the procedure for certain allegations that may result in a finding of a criminal violation”; which was referred to the Committee on the Judiciary.

Petitions

            Delegates Sponaugle and A. Evans presented a petition signed by 972 of their constituents, requesting that the Legislature act with urgency to direct the Department of Highways to craft and implement a permanent solution to the public safety hazard that exists on Allegheny Mountain, between Seneca Rocks and Harman, Route 33; which was referred to the Committee on Roads and Transportation.

            Delegate Walker presented a petition on behalf of his constituents, requesting attention and consideration for installing Guardrails along Rt. 15/4 (Taylor Fork Road) in the Enoch area of Clay County; which was referred to the Committee on Roads and Transportation.

Bills Introduced

            On motions for leave, bills were introduced, read by their titles, and severally referred as follows:

By Mr. Speaker, Mr. Thompson

            [By Request of the Executive]:

            H. B. 2726 – “A Bill to amend and reenact §25-1-15 of the Code of West Virginia, 1931, as amended; to amend and reenact §28-5-27 of said code; to amend said code by adding thereto two new sections, designated §31-20-5g and §31-20-5h; to amend and reenact §61-7-6 of said code; to amend and reenact §62-11A-1a of said code; to amend and reenact §62-11B-9 of said code; to amend and reenact §62-11C-2, §62-11C-3 and §62-11C-6 of said code; to amend said code by adding thereto a new section, designated §62-11C-10; to amend and reenact §62-12-6, §62-12-7, §62-12-9, §62-12-10, §62-12-13, §62-12-14a, §62-12-15, §62-12-17 and §62-12-19 of said code; to amend said code by adding thereto a new section, designated §62-12-29; to amend and reenact §62-15-2 of said code; and to amend said code by adding thereto a new section, designated §62-15-6a, all relating to public safety; requiring the Division of Corrections to perform graduated methods of mental health screens, appraisals and evaluations on persons committed to its custody; mandating a maximum of one year of supervised release for violent inmates; mandating a maximum of one hundred eighty days of supervised release for nonviolent inmates; requiring the Commissioner of Corrections to adopt policies regarding mandatory supervised release; requiring the Regional Jail Authority to utilize a standardized pretrial risk screening instrument adopted by the Supreme Court of Appeals of West Virginia; requiring the authority to develop and implement cognitive behavioral programming for inmates in regional jails committed to the custody of the Commissioner of Corrections; exempting parole officers from prohibitions against carrying concealed weapons; moving definition of ‘day report center’ to section relating to conditions of release on probation; providing standards and limitations under which judges and magistrates may impose a period of supervision or participation in community corrections; clarifying language regarding confinement and revocation for violations of the conditions of home incarceration; adding representative of the Bureau for Behavioral Health and Health Facilities to the community corrections subcommittee of the Governor’s Committee on Crime, Delinquency and Correction; providing that the community corrections subcommittee review, assess and report on the implementation of evidence-based practices in the criminal justice system; adding member with a background in substance abuse treatment and services to the community criminal justice boards of each county or combination of counties; providing oversight responsibility to Division of Justice and Community Services to implement standardized risk and needs assessment, evaluate effectiveness of other modifications to community corrections programs, and provide annual report; requiring probation officers to conduct a standardized risk and needs assessment for individuals placed on probation and to supervise probationer and enforce probation according to the same; authorizing the Supreme Court of Appeals of West Virginia to adopt a standardized risk and needs assessment for use by probation officers; authorizing the Supreme Court of Appeals of West Virginia to adopt a standardized pretrial screening instrument for use by the Regional Jail Authority; providing standards and limitations under which judges may impose a term of reporting to a day report center or other community corrections program as a condition of probation; authorizing day reporting center programs to provide services based on the results of a person’s standardized risk and needs assessment; providing for graduated sanctions in response to violations of the conditions of release on probation other than absconding or committing a misdemeanor or felony; revising eligibility requirements for accelerated parole program; requiring that Division of Corrections’ policies and procedures for developing a rehabilitation treatment plan include the use of substance abuse assessment tools and prioritize treatment resources based on the risk and needs assessment and substance abuse assessment results; providing for rebuttable presumption that parole is appropriate for inmates completing the accelerated parole program and a rehabilitation treatment program; providing standards and limitations for Parole Board; outlining duties of the Division of Corrections to supervise, treat and provide support services for all people released on mandatory supervised release; removing temporal standard for requirement that the Parole Board have access to a copy of an inmate’s physical, mental or psychiatric examination; authorizing employment of a director of housing for released inmates with duties relating to the reduction of parole release delays; requiring parole officers to update the standardized risk and needs assessment for each person for whom an assessment has not been conducted for parole and to supervise each person according to the assessment and the commissioner’s supervision standards; authorizing the Commissioner of Corrections to issue a certificate authorizing a parole officer to carry firearms or concealed weapons; providing standards and limitations under which the Division of Corrections may order substance abuse treatment or impose a term of reporting to a day report center or other community corrections program as a condition or modification of parole; authorizing the Commissioner of Corrections to enter into a master agreement with the Division of Justice and Community Services to reimburse counties for use of the community corrections programs; providing for graduated sanctions in response to violations of the conditions of release on parole other than absconding or committing a misdemeanor or felony; providing a parolee with the right to a hearing, upon request, regarding whether he or she violated the conditions of his or her release on parole; providing for a Community Supervision Committee to be appointed by the administrative director of the Supreme Court of Appeals of West Virginia to coordinate the sharing of information for community supervision and requiring submittal of an annual report; revising definitions; providing standards and limitations under which judges may order treatment supervision for drug offenders; requiring the Division of Justice and Community Services to use appropriated funds to implement substance abuse treatment to serve those under treatment supervision in each judicial circuit; providing that the Division of Justice and Community Services is responsible for developing standards relating to quality and delivery of substance abuse services, requiring certain education and training, paying for drug abuse assessments and certified drug treatment from appropriated funds, and requiring submittal of an annual report; outlining duties of treatment supervision service providers; and making technical changes”; to the Committee on the Judiciary then Finance.

By Mr. Speaker , Mr. Thompson, and Armstead

            [By Request of the Executive]:

            H. B. 2727 – “A Bill to amend and reenact §18-9A-7 and §18-9A-8a of the code of West Virginia, 1931, as amended, all relating to the school aid formula; adjusting the foundation school program allowance for transportation costs; restricting the ten percent additional percentage allowance for alternative fuel vehicles to school buses using compressed natural gas or propane; adjusting the foundation allowance by reducing the maximum allocation for regional education service agencies (RESA)”; to the Committee on Education then Finance.

By Delegates Paxton, Kump, Sobonya, Miller, Poore, Guthrie, L. Phillips, Staggers, Wells and Hamilton:

            H. B. 2728 – “A Bill to amend and reenact §17C-13-6 of the Code of West Virginia, 1931, as amended, relating to allowing a disabled veteran operating a vehicle bearing a disabled veteran special registration plate to park in a designated accessible parking space without an accessible parking special registration plate or windshield placard”; to the Committee on Veterans’ Affairs and Homeland Security then the Judiciary.

By Delegates Perry, Perdue, Boggs, Miley, M. Poling, Poore, Fleischauer, Marshall, Armstead, Ellington and Pasdon:

            H. B. 2729 – “A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §18-5-22c, relating to allowing schools to voluntarily maintain and use epinephrine auto-injectors; providing for the administration of an auto-injector by a school nurse or other trained and authorized nonmedical school personnel for emergency care or treatment of anaphylactic reactions; allowing the issuance of standing orders and protocols by physicians to schools to obtain epinephrine auto-injectors; setting forth notice requirements; allowing students who self-inject to use the school supply of epinephrine auto-injectors; setting forth immunity from liability for school nurses and trained and authorized nonmedical school personnel; allowing county school boards to participate in free or discounted manufacturer sponsored pharmaceutical programs to obtain epinephrine auto-injectors; providing for data collection and reporting requirements; and setting forth rule-making authority to effectuate the provisions of the section”; to the Committee on Health and Human Resources then the Judiciary.

By Delegates Morgan, Stephens, Azinger, Diserio, Ferns, Jones, Paxton, Perry, D. Poling, Romine and Swartzmiller:

            H. B. 2730 – “A Bill amend and reenact §30-38-5 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto new section, designated §30-38-19, all relating to the Real Estate Appraisal Board; providing reciprocity requirements; and moving the temporary registration requirements to its own section”; to the Committee on Government Organization then the Judiciary.

By Delegates Fleischauer, Marshall, Barill, Manypenny, Campbell, Pasdon, Fragale, Iaquinta, Staggers, Miley and Perry:

            H. B. 2731 – “A Bill to amend and reenact §16-5O-1, §16-5O-2, §16-5O-3, §16-5O-4, §16-5O-5, §16-5O-6, §16-5O-7, §16-5O-8 and §16-5O-10 of the Code of West Virginia, 1931, as amended, all relating to regulating the performance of health maintenance tasks by unlicensed personnel in certain personal care facilities; providing exceptions; identifying who may perform health maintenance tasks; requiring record keeping; requiring the administrative monitoring system to have input from registered professional nurses; requiring liability insurance; changing the short title; defining terms; and authorizing rule-making”; to the Committee on Health and Human Resources then the Judiciary.

By Delegates J. Nelson, Kump, Shott, Manypenny, Arvon, R. Smith, Butler, D. Evans, Cadle, Ambler and Cooper:

            H. B. 2732 – “A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §1-7-1, §1-7-2, §1-7-3, §1-7-4, §1-7-5 and §1-7-6, all relating to creating the Freedom From Unwarranted Surveillance Act; prohibiting the use of drones; providing exceptions; providing remedies; prohibiting the use of evidence; and defining terms”; to the Committee on the Judiciary.

By Delegates R. Phillips, Staggers, Ferro, Diserio and Reynolds

            [By Request of the Transportation Department - Division of Highways]:

            H. B. 2733 – “A Bill to amend and reenact §17C-5A-2 of the Code of West Virginia, 1931, as amended, relating to hearings before the Office of Administrative Hearings; specifying methods of service; providing permissible hearing locations; deleting the requirement that the Office of Administrative Hearings shall send hearing notices to certain witnesses; deleting an instance of a duplication of an element for driving under the influence; clarifying that the Office of Administrative Hearings shall rescind or modify the order of the Commissioner of the Division of Motor Vehicles in certain cases; noting that the Office of Administrative Hearings is not a party to an appeal; stating that a party filing an appeal is financially responsible for the transcription of the hearing and transmission of file copy; and stating that the court shall provide a copy of its final order to the Office of Administrative Hearings”; to the Committee on Roads and Transportation then the Judiciary.

By Delegate Ambler:

            H. B. 2734 – “A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §61-12-16, relating to making it illegal for anyone to photograph a corpse except for certain legitimate purposes; and providing criminal penalties”; to the Committee on the Judiciary then Finance.

By Delegates Perdue, Perry, Border, Fleischauer, Marshall, Moore and Staggers:

            H. B. 2735 – “A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §9-2-13, relating to elective or nonmedically indicated induced deliveries or cesarean sections performed at a hospital on a medical assistance recipient before the thirty-ninth week of gestation; achieving cost savings by implementing certain quality initiatives; requiring the Department of Health and Human Resources to coordinate with certain entities to collect information regarding induced deliveries and cesarean sections; requiring certain hospitals to work with physicians to reduce the number of certain induced deliveries and cesarean sections before the thirty-ninth week of gestation; requiring the Department of Health and Human Resources to perform a study and submit a written report; and requiring waivers or authorizations to be requested from federal agencies in certain instances”; to the Committee on Health and Human Resources then the Judiciary.

By Delegates Ferns, Craig, Reynolds, Storch, Skinner, White, Williams, Miley, Morgan, Lane and E. Nelson:

            H. B. 2736 – “A Bill to amend and reenact §3-6-5 of the Code of West Virginia, 1931, as amended, relating to elections and write-in candidates; eliminating straight ticket voting; and updating language on write-in candidates”; to the Committee on the Judiciary then Finance.

By Delegates Gearheart, Householder, Howell, Ellington, Espinosa, Staggers, Overington, Sumner, D. Evans, Ambler and Hamrick:

            H. B. 2737 – “A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §62-11F-1, §62-11F-2, §62-11F-3, §62-11F-4, §62-11F-5, §62-11F-6 and §62-11F-7, all relating to creating a pilot work/incarceration prison; providing a short title; providing for offenders who are eligible to participate; establishing one work/incarceration prison; authorizing the Division of Corrections to propose rules for the operation and reporting of the work/incarceration prison; providing for a reduction in the sentence of an offender sentenced to the work/incarceration prison; providing that a serious violation of the rules result in an additional sentence; appropriations; providing for the admittance of offenders from other counties; and providing for the evaluation of the work/incarceration prison”; to the Committee on the Judiciary then Finance.

By Delegates Perdue, Perry, Fleischauer, Lawrence, Marshall and Moore:

            H. B. 2738 – “A Bill to amend and reenact §30-7B-2, §30-7B-3, §30-7B-4, §30-7B-5, §30-7B-6, §30-7B-8 and §30-7B-9 of the Code of West Virginia, 1931, as amended, all relating to the Center for Nursing; adding definitions; removing outdated language; requiring the Center on Nursing for Nursing to use two thirds of its funds on loan and scholarship programs; and requiring the center to report to the Legislative Oversight Commission on Health and Human Resources Accountability instead of the Joint Committee on Government and Finance”; to the Committee on Health and Human Resources then Finance.

By Delegate Lane:

            H. B. 2739 – “A Bill to amend and reenact §8-13-5 of the Code of West Virginia, 1931, as amended, relating to the business and occupation tax; and altering the basis for municipal business and occupational taxation from gross income to net income”; to the Committee on Political Subdivisions then Finance.

By Delegates A. Evans and Sponaugle:

            H. B. 2740 – “A Bill to amend and reenact §27-2-3 of the Code of West Virginia, 1931, as amended, relating to the restriction of the use of ‘4-point mechanical restraints’ on patients in mental health facilities and the establishment of conditions which must accompany usage; criminal penalties”; to the Committee on Health and Human Resources then the Judiciary.

By Delegates Overington, Andes, Canterbury, Cowles, Rowan, Walters, Frich, Border, Ellington, D. Evans and Pasdon:

            H. B. 2741 – “A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §18B-7-17, relating to protecting academic freedom in higher education; prohibiting employment decisions concerning faculty members from being based solely on political or religious beliefs; requiring all tenure, search and hiring committee deliberations to be recorded and made available to the appropriate constituted authorities; prohibiting students from being graded on political or religious beliefs; requiring academic disciplines to welcome a diversity of approaches to unsettled questions and to provide dissenting viewpoints; providing that the uncertainty and unsettled character of all human knowledge must be respected; and providing that the obstruction of campus speakers or the civil exchange of ideas may not be tolerated”; to the Committee on Education then the Judiciary.

By Delegates Overington, Sobonya, Raines, Householder, Frich, Ellington, Butler, Kump and R. Smith:

            H. B. 2742 – “A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §1-2-2a, relating to requiring that the Redistricting Office of the Joint Committee on Government and Finance plan and propose congressional and legislative districts; providing specific criteria that the redistricting office must observe in proposing district mappings; requiring the redistricting office to advertise a proposed draft map of districts to the public; requiring the redistricting office to recommend redistricting plan to the Legislature; requiring the full Legislature to vote on plan ratification; providing for subsequent submissions of plans and vote by Legislature; requiring that commission certify to the Secretary of State that its final proposal for district boundaries is in accordance with constitutional and legal requirements; and prohibiting certain persons from influencing or attempting to influence district mapping proposals of the redistricting office”; to the Committee on the Judiciary then Finance.

House Calendar

Second ReadingH. B. 2477, Permitting certain auxiliary lighting on motorcycles; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.

First ReadingCom. Sub. for H. B. 2505, Increasing civil penalties imposed by the Public Service Commission for pipeline safety violations; on first reading, coming up in regular order, was read a first time and ordered to second reading.

            At 11:49 a.m., the House of Delegates adjourned until 11:00 a.m., Wednesday, February 27, 2013.

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