COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 146

(By Senators Unger and Beach)

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[Originating in the Committee on the Judiciary;

reported March 7, 2013.]

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A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §50-3-2c, relating to permitting magistrate courts to collect unpaid costs, fines, fees, forfeitures, restitution and penalties it has imposed on a defendant; permitting those unpaid amounts to be deducted from a defendant’s income tax refund; providing a process for deducting and distributing those unpaid amounts; creating the Magistrate Fines and Fees Collection Fund; permitting the Tax Commissioner to charge an administrative fee; and providing rule-making authority.

Be it enacted by the Legislature of West Virginia:

    That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §50-3-2c, to read as follows:

ARTICLE 3. COSTS, FINES AND RECORDS.

§50-3-2c. Withholding of personal income tax refunds for failure to pay fines and costs or failure to appear in court.

    (a) If costs, fines, fees, forfeitures, restitution or penalties imposed by the magistrate court upon conviction of a person for a criminal offense as defined by this code or for failure to appear are not paid in full within one year of the judgment, the magistrate court clerk or, upon a judgment rendered on appeal, the circuit clerk shall notify the Tax Commissioner that the defendant has failed to pay the costs, fines, forfeitures or penalties assessed by the court. The notice provided by the magistrate court to the Tax Commissioner must include the defendant’s Social Security number. The Tax Commissioner, or his or her designee, shall withhold from any personal income tax refund due and owing to a defendant the costs, fines, fees, forfeitures, restitution or penalties due, the Tax Commissioner’s administration fee for the withholding and any and all fees that the magistrate court would have collected had the defendant appeared: Provided, That no withholding shall be made under this section if there is an unsatisfied withholding request made pursuant to section two-b, article ten, chapter eight of this code. The Tax Commissioner’s administration fee shall not exceed $25, unless this maximum amount is increased by legislative rule promulgated in accordance with article three, chapter twenty-nine-a of this code. The administrative fees deducted shall be deposited in the special revolving fund hereby created in the State Treasury, which shall be designated as the Magistrate Fines and Fees Collection Fund, and the Tax Commissioner shall make such expenditures from the fund as he or she deems appropriate for the administration of this subsection.

    (b) After deduction of the Tax Commissioner’s administration fee, the Tax Commissioner shall remit to the magistrate court all remaining amounts withheld pursuant to this section and the magistrate court shall distribute applicable costs, fines, fees, forfeitures, restitution or penalties owed to the appropriate fund or payee, as applicable and listed in subsection (j), section two-a of this article. After the costs, fines, fees, forfeitures, restitution or penalties are withheld, the Tax Commissioner shall refund any remaining balance due the defendant. If the refund is not sufficient to cover all the costs, fines, fees, forfeitures, restitution or penalties being withheld pursuant to this section, the Tax Commissioner’s administration fee shall be retained by the Tax Commissioner and the remaining money withheld shall be remitted by the Tax Commissioner to the magistrate court. The magistrate court shall then allocate the money so remitted to the magistrate court in the manner listed in subsection (j), section two-a of this article.

    (c) In the event the costs, fines, fees, forfeitures, restitution or penalties exceed the defendant’s income tax refund, the Tax Commissioner shall withhold the remaining balance in subsequent years until such time as the costs, fines, fees, forfeitures, restitution or penalties owed are paid in full. The Tax Commissioner shall remit the moneys that he or she collects to the appropriate magistrate court no later than July 1 of each year. If the magistrate court subsequently determines that any costs, fines, fees, forfeitures, restitution or penalties were erroneously imposed, the magistrate court shall promptly notify the Tax Commissioner. If the refunds have not been withheld and remitted, the Tax Commissioner may not withhold and remit payment to the magistrate court and shall so inform the magistrate court. If the refunds have already been withheld and remitted to the magistrate court, the Tax Commissioner shall so inform the magistrate court. In either event, all refunds for erroneously imposed costs, fines, forfeitures or penalties shall be made by the magistrate court and not by the Tax Commissioner.

    (d) Rules. – The Tax Commissioner may propose for legislative approval such rules as may be useful or necessary to carry out the purpose of this section and to implement the intent of the Legislature. Rules shall be promulgated in accordance with article three, chapter twenty-nine-a of this code.