Senate Bill No. 53

(By Senators Tucker, Jenkins and Chafin)

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[Introduced January 11, 2012; referred to the Committee on the Judiciary; and then to the Committee on Finance.]

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A BILL to amend and reenact §29-21-6 of the Code of West Virginia, 1931, as amended, relating to requiring public defender corporations of all the judicial circuits to be centralized under the Executive Director of Public Defender Services; and granting rule-making authority.

Be it enacted by the Legislature of West Virginia:

    That §29-21-6 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:

ARTICLE 21. PUBLIC DEFENDER SERVICES.

§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 any other grants and contracts 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 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 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 designee shall operate an accounting and auditing division to require and monitor the compliance with this article by public defender corporations and other persons or entities receiving funding or compensation from the agency. The 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 submit financial statements monthly and to report monthly on the billable and nonbillable time of its professional employees, including time used in administration of the respective offices, so as to compare the time to similar time expended in nonpublic law offices for 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. This assistance shall include, but not be limited to, budget preparation and statistical analysis.

    (e) The agency shall establish and the executive director or his or her designee shall operate an appellate advocacy division for the purpose of prosecuting litigation on behalf of eligible clients in the Supreme Court of Appeals. The executive director or 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 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 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 may select and employ staff attorneys to perform the duties prescribed by this subsection. The appellate division shall maintain records of representation of eligible clients for record purposes only.

    (f) In order to improve the quality of legal representation, assure the prudent and resourceful expenditure of state funds the agency shall establish a program for the executive director to manage and otherwise have central authority and control over the public defender corporations created in accordance with section eight of this article. The executive director has the authority to promulgate rules, and has such other authority and perform such duties, as may be required or necessary to effectuate this subsection.

    NOTE: The purpose of this bill is to require public defender corporations of all the judicial circuits to be centralized under the Executive Director of Public Defender Services. The bill also grants rule-making authority.

    Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.