ENROLLED
H. B. 4702
(By Delegates Michael, Mezzatesta, Doyle, Clements, Leggett and
Frederick)
[Passed March 14, 1998; in effect from passage.]
AN ACT to amend article six, chapter twelve of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
by adding thereto a new section, designated section twenty- one; to amend and reenact sections one-a, two, three, four,
five, eight, nine, ten and twenty-six, article twenty,
chapter thirty-one of said code; to further amend said
article by adding thereto three new sections, designated
section five-c, section eight-a and section nine-a; and to
amend and reenact sections fourteen, fifteen and seventeen,
article three, chapter thirty-three of said code, all
relating to providing for the administrative structure and
funding of juvenile and adult detention and corrections,
construction, operations, maintenance and oversight;
providing that the regional jail and correctional facility
authority may finance certain costs through the investment
management board; requiring the investment management board
to invest certain funds available for investment from the public employees retirement system in the state's regional
jail and correctional facility system; limiting the amount
that may be transferred; loan repayment; requiring authority
to certify a list of projects; rate of return on
investments; creating funds; requiring board to initiate a
declaratory judgement action; providing that the authority
may design, finance and construct or renovate and repair
juvenile facilities; adding definitions; revising the
composition, powers and duties of the authority; revising
the composition and scope of authority of the jail and
correctional facility standards commission; creating a
separate standards commission for juvenile facilities and
providing for the appointment of members; specifying powers
and duties of the juvenile facilities standards commission;
authorizing the regional jail and correctional facility
authority to construct new facilities or renovate existing
facilities to be used for secure predisposition detention of
juveniles, for juvenile transfer facilities and for juvenile
correctional facilities and allowing said facilities to be
adjacent to regional jails under certain circumstance;
redefining the regional jail and correctional facility
development fund; including discretionary oversight of
juvenile facilities under the jurisdiction of the
legislative oversight committee on regional jails and
correctional facilities; providing for the disposition of
certain designated insurance tax revenues; eliminating obsolete and superfluous provisions; and providing a
reasonable return on the investment by dedicating a portion
of revenues generated from certain designated insurance
taxes.
Be it enacted by the Legislature of West Virginia:
That article six, chapter twelve of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section, designated section
twenty-one; that sections one-a, two, three, four, five, eight,
nine, ten and twenty-six, article twenty, chapter thirty-one of
said code be amended and reenacted; that said article be further
amended by adding thereto three new sections, designated sections
five-c, eight-a and nine-a; and that sections fourteen, fifteen
and seventeen, article three, chapter thirty-three of said code
be amended and reenacted, all to read as follows:
CHAPTER 12. PUBLIC MONEYS AND SECURITIES.
ARTICLE 6. WEST VIRGINIA INVESTMENT MANAGEMENT BOARD.
§12-6-21. Investment with regional jail and correctional
facility authority.
(a) The Legislature finds and declares:
(1) That the supreme court of appeals has determined and
ordered that the Constitution of this state imposes a duty on
behalf of the state to make significant improvements in the jail
and correctional facility system, including the duty to make
capital improvements to facilities and to pay for the cost of
those improvements;
(2) That construction of capital improvements requires that
the cost of the facilities be financed over time; that capital
improvements cannot be funding out of the current year
appropriations of the Legislature; and that section fifty-one,
article six of the Constitution prohibits the Legislature
amending the budget bill so as to create a deficit;
(3) That while the supreme court of appeals is empowered to
interpret the laws, including the Constitution of the state,
section one, article ten of the Constitution grants to the
Legislature the power of taxation; section fifty-one, article six
of the Constitution grants to the Legislature the power of
appropriation; and section one, article five of the Constitution
prohibits any branch of government from exercising powers
properly belongs to another;
(4) That the enacting of new taxes, or the diversion of
revenues from other essential departments and functions of
government, in order to support capital improvements in jails and
correctional facilities, is not in the interests of the people of
the state represented in the Legislature, and is specifically
rejected by the Legislature in its exercise of its legitimate
Constitutional powers;
(5) That the decision of the supreme court of appeals,
imposing a duty on the state to construct and pay for capital
improvements to jails and correctional facilities arising out of
the Bill of Rights of the United States Constitution declared
ratified in the year one thousand seven hundred ninety-one, and the state Constitution of the year one thousand eight hundred
sixty-three, constitutes a prior liability of the state within
the meaning of section four, article ten of the Constitution and
an exception to the Constitutional limitation on contracting
state debt;
(6) That the construction of capital improvements of jail
and correctional facilities may be funded through funds available
for investment through the West Virginia investment management
board, invested in such a manner as to be assured as high a rate
of return as would be earned if these funds were otherwise
invested, and repaid by the state as provided in this article.
(b) The investment management board shall upon request of
the regional jail and correctional facility authority transfer
moneys as an investment, from funds available for investment from
the public employees retirement system, to the regional jail and
correctional facility authority. The amount transferred may not
exceed one hundred fifty million dollars in the aggregate and
shall be used for the purposes of financing construction of
regional jails, correctional facilities, juvenile detention
facilities, juvenile correctional facilities, or extensions,
renovations, improvements or additions thereto, or for the
replacement or renovation of existing facilities. If the board
has loaned money to the state building commission under
subsection (b), section nineteen of this article, the total
amount loaned shall be repaid to the board from funds made
available under the investment made pursuant to this section. Prior to the expenditure of any of the funds, the regional jail
and correctional facility authority shall certify to the joint
committee on government and finance a list of projects that are
to be funded from the invested funds. This certified list may
not thereafter be altered or amended other than by legislative
enactment. Funds shall be invested with the regional jail and
correctional facility authority as requested by the regional jail
and correctional facility authority. The money invested shall
earn a return at a rate equal to the average monthly rate of
return earned by fixed income investments made by the board over
the previous twelve months, plus one tenth of one percent. The
monthly rate of return shall be calculated every month. The
manner and timing of the investment shall be determined by the
board. The total of the amounts invested may not exceed a total
of one hundred fifty million dollars during fiscal year one
thousand nine hundred ninety-eight, and fiscal year one thousand
nine hundred ninety-nine, cumulatively. The authority to make
the investment authorized by this section expires on the
thirtieth day of June, one thousand nine hundred ninety-nine.
(c) There is created in the state treasury a regional jail
and correctional facility investment fund dedicated to the
payment of investment earnings and the return of capital invested
under this section. The treasurer shall administer the fund.
The fund is an interest-bearing account with interest earned
credited to and deposited back into the fund. The fund consists
of amounts required to be deposited by section fourteen, article three, chapter thirty-three of this code.
(d) The treasurer shall, monthly, transfer amounts from the
regional jail and correctional facility investment fund to the
board that are sufficient to allow investment earnings to be paid
and the capital invested returned in substantially equal amounts
by the thirty-first day of August, two thousand twenty-three:
Provided, That the amount of investment earnings paid and the
capital invested returned during the fiscal year beginning the
first day of July, one thousand nine hundred ninety-eight, may
not exceed ten million dollars. Payment representing investment
earnings and the return of capital invested shall begin six
months from the date the initial funds are invested, or by the
tenth day of January, one thousand nine hundred ninety-nine,
whichever is later.
(e) The board shall calculate the amount of the projected
annual investment earnings to be paid and the capital invested to
be returned and certify the amount to the treasurer on the first
day of December of each year, until all investment earnings are
paid and the total capital invested is returned.
(f) As soon as practical, but at least within thirty days of
the effective date of this section, the investment management
board shall initiate a declaratory judgement action seeking to
determine the constitutionality of the investment to be made
under the provisions of this section and the validity of
subsection (g) of this section. The action shall be initiated in
and decided by the supreme court of appeals, notwithstanding any provision of this code requiring the action to be initiated in a
circuit court.
(g) The Legislature recognizes the fiduciary liability and
responsibility imposed on the board by this article and by
article six, chapter forty-four of this code. The board, its
trustees and employees, have no liability, either personally or
corporately with respect to the investment provided for in this
section and the loans made under section nineteen of this
article, if the investment and loans are made in accordance with
the respective provisions of this section and section nineteen of
this article.
(h) The regional jail and correctional facility authority
shall expend the funds invested under the provisions of this
section to proceed with the projects identified pursuant to
subsection (b) of this section.
CHAPTER 31. CORPORATIONS.
ARTICLE 20. WEST VIRGINIA REGIONAL JAIL AND CORRECTIONAL
FACILITY AUTHORITY.
§31-20-1a. Legislative findings and purposes.
(a) The Legislature finds as follows:
(1) That some existing jails, adult correctional facilities
and juvenile detention and correctional facilities in this state
serve neither the best interests of the incarcerated populations
of the jails and facilities nor the citizens of West Virginia;
(2) That due to time constraints established and imposed by
judicial decisions, it is imperative that the Legislature give immediate and diligent attention to the improvement of existing
facilities and the construction and maintenance of new
facilities, as well as to the development and implementation of
new, innovative and effective programs dealing with incarcerated
persons;
(3) That the physical condition of some existing jails,
adult correctional facilities and juvenile facilities contribute
to a frustration of efforts to provide rehabilitation, education,
vocational training, and social and psychological adjustment and
improvement for incarcerated persons, with the result that those
existing facilities are utilized largely for the limited purposes
of confinement;
(4) That there is a need to examine, understand and
implement various new and innovative trends which are being
advanced in the area of correctional institution design, and to
explore the developing alternatives to incarceration which are
being experimented with in other jurisdictions; and
(5) That the revenues of this state, insofar as they are
currently used to maintain a traditional penal system, are not
efficiently utilized to provide facilities or produce programs
which could direct an adult or juvenile inmate's or detainee's
time and effort to prepare him or her for life outside of
confinement; nor do the revenues provide corrections officials
with the resources necessary to address the issues and problems
with which they are confronted.
(b) The purposes of this article are as follows:
(1) To provide a cost-efficient system within this state for
the construction, maintenance and operation of adult jails and
correctional facilities;
(2) To develop and implement plans for the renovation and
improvement of existing facilities and the design and
construction of new facilities to better serve the incarcerated
and detained juvenile and adult populations and the citizens of
this state;
(3) To provide an environment in which new and innovative
corrections programs may be considered and undertaken, and in
which opportunities may be offered to incarcerated persons to
overcome personal deficiencies which are educational, vocational,
social or psychological in nature; and
(4) To investigate the feasibility of individualizing and
classifying adult inmates according to their psychological and
physical conditions at the time they are incarcerated, and the
feasibility of designing for each such inmate a plan for
self-improvement and rehabilitation.
§31-20-2. Definitions.
Unless the context indicates clearly otherwise, as used in
this article:
(a) "Adjacent regional juvenile detention facility" means a
facility constructed or maintained on property owned or
controlled by the regional jail authority and designed for the
short term preadjudicatory detention of juveniles, for the
confinement of juveniles who are awaiting transportation to or placement at another juvenile detention facility or juvenile
correctional facility and for juveniles who are awaiting trial as
an adult pursuant to section ten, article five, chapter forty- nine of this code.
(b) "Authority" or "West Virginia Regional Jail Authority"
means the West Virginia regional jail and correctional facility
authority created by this article.
(c) "Board" means the governing body of the authority.
(d) "Bonds" means bonds of the authority issued under this
article.
(e) "Cost of construction or renovation of a local jail
facility, regional jail facility or juvenile facility" means the
cost of all lands, water areas, property rights and easements,
financing charges, interest prior to and during construction and
for a period not exceeding six months following the completion of
construction, equipment, engineering and legal services, plans,
specifications and surveys, estimates of costs and other expenses
necessary or incidental to determining the feasibility or
practicability of any project, together with any other expenses
as may be necessary or incidental to the financing and the
construction or renovation of the facilities and the placing of
the facilities in operation.
(f) "County" means any county of this state.
(g) "Federal agency" means the United States of America and
any department, corporation, agency or instrumentality created,
designated or established by the United States of America.
(h) "Fund" means the regional jail and correctional facility
development fund provided in section ten of this article,
including those accounts that may be established by the authority
for accurate accounting of the expenditure of public funds by
that agency.
(i) "Government" means state and federal government, and any
political subdivision, agency or instrumentality of the state or
federal government, corporate or otherwise.
(j) "Inmate" means any adult person properly committed to a
local or regional jail facility or a correctional facility.
(k) "Local jail facility" means any county facility for the
confinement, custody, supervision or control of adult persons
convicted of misdemeanors, awaiting trial or awaiting
transportation to a state correctional facility.
(l) "Municipality" means any city, town or village in this
state.
(m) "Notes" means any notes as defined in section one
hundred four, article three, chapter forty-six of this code
issued under this article by the authority.
(n) "Correctional facility" means any correctional facility,
penitentiary or other correctional institution operated by the
division of corrections for the incarceration of adults.
(o) "Regional jail facility" or "regional jail" means any
facility operated by the authority and used jointly by two or
more counties for the confinement, custody, supervision or
control of adult persons convicted of misdemeanors or awaiting trial or awaiting transportation to a state correctional
facility.
(p) "Regional jail commission" means the commission
established in section eight of this article.
(q) "Revenues" means all fees, charges, moneys, profits,
payments of principal of, or interest on, loans and other
investments, grants, contributions and all other income received
by the authority.
(r) "Security interest" means an interest in the loan
portfolio of the authority which is secured by an underlying loan
or loans and is evidenced by a note issued by the authority.
(s) "Work farm" has the same meaning as that term is used in
section twelve, article eight, chapter seven of this code
authorizing work farms for individual counties.
(t) "Juvenile detention facility" or "juvenile detention
center" means a facility operated by the division of juvenile
services for the short term preadjudicatory detention of
juveniles, for the confinement of juveniles who are awaiting
transportation to or placement at another juvenile detention
facility or juvenile correctional facility and for juveniles who
are awaiting trial as an adult pursuant to section ten, article
five, chapter forty-nine of this code.
(u) "Juvenile correctional facility" means a facility
operated by the division of juvenile services for the post- dispositional confinement of juveniles adjudicated of offenses
that would be criminal offenses if committed by an adult.
§31-20-3. West Virginia regional jail and correctional facility
authority; composition; appointment; terms; compensation and
expenses.
There is hereby created the West Virginia regional jail and
correctional facility authority which shall be a body corporate
and a government instrumentality. The authority shall have and
is hereby granted all of the powers and authority and shall
perform all of the functions and services heretofore vested in
and performed by the West Virginia regional jail and prison
authority. The West Virginia regional jail and prison authority
is hereby abolished. Wherever in this chapter and elsewhere in
law reference is made to the West Virginia regional jail and
prison authority, such reference shall henceforth be construed
and understood to mean the West Virginia regional jail and
correctional facility authority.
The authority shall be governed by a board of nine members,
seven of whom are entitled to vote on matters coming before the
authority. The complete governing board shall consist of the
commissioner of the division of corrections; the director of the
division of juvenile services; the secretary of the department of
military affairs and public safety; the secretary of the
department of administration, or his or her designated
representative; three county officials appointed by the governor,
no more than two of which may be of the same political party; and
two citizens appointed by the governor to represent the areas of
law and medicine. The commissioner of the division of corrections and the director of the division of juvenile services
shall serve in an advisory capacity and are not entitled to vote
on matters coming before the authority. Members of the
Legislature are not eligible to serve on the board.
The governor shall nominate and, by and with the advice and
consent of the Senate, appoint the five appointed members of the
authority for staggered terms of four years beginning the first
day of July, one thousand nine hundred eighty-nine. Of the
members of the board first appointed, one shall be appointed for
a term ending the thirtieth day of June, one thousand nine
hundred ninety-one, two shall be appointed for terms ending the
thirtieth day of June, one thousand nine hundred ninety-two, and
two shall be appointed for terms ending the thirtieth day of
June, one thousand nine hundred ninety-three. As these original
appointments expire, each subsequent appointment shall be for a
full four-year term.
Any appointed member whose term has expired shall serve
until his successor has been duly appointed and qualified. Any
person appointed to fill a vacancy shall serve only for the
unexpired term. Any appointed member is eligible for
reappointment. Members of the authority are not entitled to
compensation for services performed as members but are entitled
to reimbursement for all reasonable and necessary expenses
actually incurred in the performance of their duties.
All members of the board of the authority shall execute an
official bond in a penalty of ten thousand dollars, conditioned as required by law. Premiums on such bond shall be paid from
funds accruing to the authority. Such bond shall be approved as
to form by the attorney general and as to sufficiency by the
governor and, when fully executed and approved, shall be filed in
the office of the secretary of state.
§31-20-4. Governing body; organization and meetings; quorum;
administrative expenses.
The governing body of the authority shall consist of the
voting members of the board as provided for in section three of
this article and shall exercise all the powers given to the
authority in this article. On the second Monday of July of each
odd-numbered year, the board shall meet to elect a chairman and
a secretary from among its own members. The secretary of the
department of administration or his or her designated
representative shall serve as treasurer of the board. The board
shall otherwise meet quarterly, unless a special meeting is
called by its chairman.
A majority of the members of the board constitute a quorum,
and a quorum must be present for the board to conduct business.
Unless the bylaws require a larger number, action may be taken by
majority vote of the members present.
The board shall prescribe, amend and repeal bylaws and rules
governing the manner in which the business of the authority is
conducted and shall review and approve the budget prepared by the
executive director annually.
The governor shall, with the advice and consent of the Senate, appoint an executive director to act as its chief
executive officer, to serve at the will and pleasure of the
governor. The executive director is empowered to employ any
other personnel he or she determines necessary and may appoint
counsel and legal staff for the authority and retain such
temporary engineering, financial and other consultants or
technicians as may be required for any special study or survey
consistent with the provisions of this article. The executive
director is further empowered to engage in negotiations and carry
out plans to implement the provisions of this article and to
exercise those powers listed in section five of this article on
behalf of the authority. The executive director shall prepare
annually a budget to be submitted to the board for its review and
approval.
All costs incidental to the administration of the authority,
including office expense, personal services expense and current
expense, shall be paid from the regional jail and correctional
facility development fund in accordance with guidelines issued by
the board of the authority.
§31-20-5. Powers and duties of the authority; bidding
procedures.
Public hearings pursuant to this section shall be held by
the authority in convenient locations for public comment on the
establishment of regional jails. The authority shall cause to be
published at least two weeks in advance of a hearing a Class II-0
legal advertisement, as provided in section two, article three, chapter fifty-nine of this code, setting forth the reason for the
hearing and the time, place and date thereof. The publication
area shall be each county which may be included in a region for
the purposes of a regional jail with the county in which the
public hearing is held.
In addition to the hearing requirements above, before
beginning construction of a new facility for use as a regional
jail or correctional facility or before beginning renovation or
acquisition of an existing facility for use as a regional jail
facility, which existing facility is not already a jail,
correctional facility or secure facility for the detention of
juveniles or persons otherwise involuntarily committed or
confined, the authority shall hold a hearing for comment by all
members of the public on all aspects relating to the advisability
of the use of the site for that regional jail facility. The
authority shall promulgate legislative rules pursuant to chapter
twenty-nine-a of this code for the requirements for notice and
other procedures of said public hearings, which requirements
shall be as similar as practicable to those hearings conducted
regarding the construction of bridges by the West Virginia
department of highways.
The authority, as a public corporation and governmental
instrumentality exercising public powers of the state, may
exercise all powers necessary or appropriate to carry out the
purposes of this article, including, but not limited to, the
power:
(a) To acquire, own, hold and dispose of property, real and
personal, tangible and intangible.
(b) To lease property, whether as a lessee or lessor.
(c) To mortgage or otherwise grant security interests in its
property.
(d) To conduct examinations and investigations and to hear
testimony and take proof, under oath or affirmation at public or
private hearings, on any matter relevant to this article and
necessary for information on the construction or renovation of
any adult correctional facility or juvenile facility or the
establishment of any correctional facility industries project.
(e) To issue subpoenas requiring the attendance of witnesses
and the production of books and papers relevant to any hearing
before the authority or one or more members appointed by it to
conduct any hearing.
(f) To apply to the circuit court having venue of the
offense to have punished for contempt any witness who refuses to
obey a subpoena, refuses to be sworn or affirmed, or refuses to
testify, or who commits any contempt after being summoned to
appear.
(g) To sue and be sued, implead and be impleaded, and
complain and defend in any court.
(h) To adopt, use and alter at will a corporate seal.
(i) To make rules for the management and regulation of its
affairs pursuant to article three, chapter twenty-nine-a of this
code.
(j) To appoint officers, agents and employees.
(k) To make contracts of every kind and nature and to
execute all instruments necessary or convenient for carrying on
its business, including contracts with any other governmental
agency of this state or of the federal government or with any
person, individual, partnership or corporation to effect any or
all of the purposes of this article.
(l) Without in any way limiting any other subdivision of
this section, to accept grants from and enter into contracts and
other transactions with any federal agency.
(m) To borrow money and to issue its negotiable bonds,
security interests or notes and to provide for and secure the
payment thereof, and to provide for the rights of the holders
thereof, and to purchase, hold and dispose of any of its bonds,
security interests or notes: Provided, That no bond or other
obligation may be issued or incurred unless and until the
Legislature by concurrent resolution has approved the purpose and
amount of each project for which proceeds from the issuance of
the bond or other obligation will be used.
(n) To sell, at public or private sale, any bond or other
negotiable instrument, security interest or obligation of the
authority in a manner and upon terms that the authority considers
would best serve the purposes of this article.
(o) To issue its bonds, security interests and notes payable
solely from the revenues or other funds available to the
authority therefor; and the authority may issue its bonds, security interests or notes in such principal amounts as it
considers necessary to provide funds for any purposes under this
article, including:
(1) The payment, funding or refunding of the principal of,
interest on or redemption premiums on, any bonds, security
interests or notes issued by it whether the bonds, security
interests, notes or interest to be funded or refunded have or
have not become due.
(2) The establishment or increase of reserves to secure or
to pay bonds, security interests, notes or the interest thereon
and all other costs or expenses of the authority incident to and
necessary or convenient to carry out its corporate purposes and
powers. Any bonds, security interests or notes may be
additionally secured by a pledge of any revenues, funds, assets
or moneys of the authority from any source whatsoever.
(p) To issue renewal notes or security interests, to issue
bonds to pay notes or security interests and, whenever it
considers refunding expedient, to refund any bonds by the
issuance of new bonds, whether the bonds to be refunded have or
have not matured except that no renewal notes shall be issued to
mature more than ten years from date of issuance of the notes
renewed and no refunding bonds may be issued to mature more than
twenty-five years from the date of issuance.
(q) To apply the proceeds from the sale of renewal notes,
security interests or refunding bonds to the purchase, redemption
or payment of the notes, security interests or bonds to be refunded.
(r) To accept gifts or grants of property, funds, security
interests, money, materials, labor, supplies or services from the
United States of America or from any governmental unit or any
person, firm or corporation, and to carry out the terms or
provisions of, or make agreements with respect to, or pledge, any
gifts or grants, and to do any and all things necessary, useful,
desirable or convenient in connection with the procuring,
acceptance or disposition of gifts or grants.
(s) To the extent permitted under its contracts with the
holders of bonds, security interests or notes of the authority,
to consent to any modification of the rate of interest, time of
payment of any installment of principal or interest, security or
any other term of any bond, security interest, note or contract
or agreement of any kind to which the authority is a party.
(t) To sell security interests in the loan portfolio of the
authority. The security interests shall be evidenced by
instruments issued by the authority. Proceeds from the sale of
security interests may be issued in the same manner and for the
same purposes as bond and note revenues.
(u) To propose legislative rules for promulgation, in
accordance with the provisions of article three, chapter twenty- nine-a of this code, to implement and make effective the powers,
duties and responsibilities invested in the authority by the
provisions of this article and otherwise by law.
(v) To assume the responsibility for operation and management of regional jail facilities under the jurisdiction of
the state regional jail and correctional facility authority. The
authority shall provide for the transportation of inmates between
the regional jails and local holding facilities for court
appearances.
(w) To exercise all power and authority provided in this
article necessary and convenient to plan, finance, construct,
renovate, maintain and operate or oversee the operation of
regional jails and correctional facilities.
(x) To exercise all power and authority provided in this
article necessary and convenient to plan, finance, construct,
renovate, repair and replace juvenile detention facilities and
juvenile correctional facilities.
(y) To cooperate with the commission for distribution of
surplus foods and to authorize the executive director to exercise
all power and authority provided in this section necessary to
implement the pilot program for delivery of leftover prepared
foods at the regional jail located in Marshall County, pursuant
to section seventeen, article two, chapter eighteen of this code.
§31-20-5c. Additional powers and duties of the authority;
juvenile detention facilities.
(a) The regional jail and correctional facility authority
shall complete a comprehensive study of all existing juvenile
detention facilities in the state of West Virginia no later than
the first day of October, one thousand nine hundred ninety-eight.
During the conduct of this study, all state agencies shall provide the authority with any relevant information and materials
that the authority requests. This study shall include an
assessment of the physical conditions of confinement within the
existing juvenile detention facilities and the relative need for
facilities of that type, taking into account the broad range of
alternatives that are available for juveniles who are in the
custody of the division of juvenile services.
(b) After completing this study, the authority shall submit
a report to the governor proposing a plan for the establishment
of regional juvenile detention facilities.
(c) The authority shall consider, but is not limited to, the
following when in developing the regional juvenile detention
facilities plan:
(1) All federal statutes and mandates concerning the
location, construction, operation, administration and staffing of
juvenile detention facilities;
(2) The relative physical condition of the juvenile detention
facilities located within the state;
(3) The transportation costs associated with the
establishment of centralized and regional juvenile detention
facilities, including, but not limited to, the costs of
transporting detained juveniles to court appearances and for
other necessary absences from the facility.
(4) The availability of medical services and educational and
recreational opportunities;
(5) Information received from public hearings;
(6) The relative savings in cost and efficiency of providing
regional juvenile detention services at facilities located
adjacent to existing regional jail facilities, including moneys
saved by the sharing of certain staff and services, including
food services, to the extent that such sharing of resources is
permitted by federal law and guidelines;
(7) Available facilities located adjacent to existing
regional jails which may be used as regional juvenile detention
facilities, including, but not limited to, existing county and
state owned properties: Provided, That if the authority
determines that an existing facility meets applicable standards,
including all federal standards, or could reasonably be made to
meet the standards for a regional juvenile detention facility,
the authority may proceed to acquire that existing facility and
compensate the owner thereof in an amount that may not exceed
fair market value.
§31-20-8. Jail facilities standards commission; appointment;
compensation; vacancies; quorum.
(a) A jail facilities standards commission of twelve members
is hereby created. The superintendent of the state police or his
or her designee shall serve as chairperson of the commission and
is eligible to vote on matters before the commission. The
governor shall appoint two county sheriffs, to be chosen from a
list of three names provided by the president of the West
Virginia sheriffs' association, three county commissioners, to be
chosen from a list of five names provided by the president of the West Virginia county commissioners' association, and one chief of
police, to be chosen from a list of three names provided by the
president of the West Virginia police chiefs' association. Each
of the appointed members shall serve for a term of three years,
is eligible for reappointment and may vote on matters before the
commission. The executive director of the regional jail and
correctional facility authority, the commissioner of the division
of corrections, the, commissioner of the bureau of public health,
the state fire marshal, and the superintendent of schools or
their designees shall be members ex officio in an advisory
capacity.
(b) Members of the commission shall serve without
compensation, but may be reimbursed by the regional jail and
correctional facility authority for reasonable and necessary
expenses incurred in the performance of their duties. The
regional jail and correctional facility authority shall provide
the commission with secretarial and other necessary services.
(c) A vacancy among the appointed members of the commission
shall be filled, within thirty days, in the same manner as the
original appointment. A quorum consists of four of the seven
voting members. .
§31-20-8a. Juvenile facilities standards commission; appointment;
compensation; vacancies; quorum.
(a) A juvenile facilities standards commission consisting of
nine members is hereby created. The governor shall appoint two
citizen members who are experienced and knowledgeable in the field of law enforcement; one citizen member who is experienced
and knowledgeable in the field of juvenile development; and one
lay member. Each of these appointed members shall serve for a
term of three years and be eligible for reappointment. The
secretary of the department of military affairs and public safety
shall be a member ex officio and shall serve as the commission's
chairman. The state fire marshal and the chairman of the
juvenile justice subcommittee of the governor's committee on
crime, delinquency and correction shall be members ex officio.
The director of the division of juvenile services and the
executive director of the regional jail and correctional facility
authority shall be members ex officio but shall serve in an
advisory capacity are not entitled to vote on matters coming
before the commission.
(b) Members of the commission shall serve without
compensation, but may be reimbursed by the division of juvenile
services for reasonable and necessary expenses incurred in the
performance of their duties. The division of juvenile services
shall provide the commission with secretarial and other necessary
services.
(c) A vacancy among the appointed members of the commission
shall be filled, within thirty days, in the same manner as the
original appointment. A quorum consists of four of the seven
voting members.
§31-20-9. Jail facilities standards commission; purpose, powers
and duties.
(a) The purpose of the jail facilities standards commission
is to assure that proper minimum standards and procedures are
developed for jail facility operation, maintenance and management
of inmates for regional jails and local jail facilities used as
temporary holding facilities. In order to accomplish this
purpose, the commission shall:
(1) Prescribe standards for the maintenance and operation of
county and regional jails. The standards shall include, but not
be limited to, requirements assuring adequate space, lighting and
ventilation; fire protection equipment and procedures; provision
of specific personal hygiene articles; bedding, furnishings and
clothing; food services; appropriate staffing and training;
sanitation, safety and hygiene; isolation and suicide prevention;
appropriate medical, dental and other health services; indoor and
outdoor exercise; appropriate vocational and educational
opportunities; classification; inmate rules and discipline;
inmate money and property; religious services; inmate work
programs; library services; visitation, mail and telephone
privileges; and other standards necessary to assure proper
operation: Provided, That the standards developed for the
construction, operation and maintenance of jails apply only to
jail facilities completed after the fifth day of April, one
thousand nine hundred eighty-eight, and that the standards serve
only as guidelines for any jail facility in operation prior to
that date: Provided, however, That the commission shall establish
standards and procedures permitting and implementing in those facilities the double bunking of inmates in all appropriate cases
to the extent that this practice does not violate federal law;
(2) Propose legislative rules for promulgation pursuant to
the provisions of article three, chapter twenty-nine-a of this
code that are necessary to implement the provisions of this
article relating to jail facilities, including, without
limitation, minimum jail and work farm standards which shall be
proposed for promulgation on or before the first day of July,
one thousand nine hundred ninety-nine: Provided, That rules
filed by the jail and correctional facilities standards
commission and authorized by the Legislature to be promulgated
before the amendment to this section enacted in the regular
session of the Legislature in the year one thousand nine hundred
ninety-eight remain in force except that such previously
promulgated rules no longer apply to: (i) Correctional
facilities; and (ii) jail facilities that were originally
constructed for use as a jail which were completed and placed in
operation before the fifth day of April, one thousand nine
hundred ninety-eight: Provided, however, That such previously
promulgated rules shall serve as guidelines for those facilities
that fall within the specifications of (ii) herein;
(3) Develop a process for reviewing and updating the jail
and work farm standards pursuant to the provisions of article
three, chapter twenty-nine-a of this code as necessary to assure
that they conform to current law; and
(4) Report periodically to the regional jail and correctional facility authority and the appropriate county and
municipal authorities to advise, recommend, and direct actions to
be taken by the authority, the county or the municipality to
implement proper minimum jail and work farm standards.
(b) Notwithstanding any other provision of this code to the
contrary, any county commission providing and maintaining a jail
on the effective date of this article may not be required to
provide and maintain a jail after a regional jail becomes
available pursuant to the provisions of article twenty, chapter
thirty-one of this code, unless the county commission determines
that a facility is necessary: Provided, That the county
commission may provide and maintain a holding facility which
complies with the standards set forth for holding facilities in
legislative rules promulgated by the jail facilities standards
commission or its predecessor, the jail and correctional facility
standards commission.
§31-20-9a. Juvenile facilities standards commission; purpose;
powers; and duties.
The purpose of the commission is to assure that proper
minimum standards and procedures are developed for juvenile
detention and juvenile correctional facility operation,
maintenance and management. To this end, the commission shall:
(1) Develop standards for the maintenance and operation of
juvenile detention and correctional facilities. These standards
shall include, but not be limited to, requirements assuring
adequate space, lighting and ventilation; fire protection equipment and procedures; provision of specific personal hygiene
articles; bedding, furnishings and clothing; food services;
appropriate staffing and training; sanitation, safety and
hygiene; isolation and suicide prevention; appropriate medical,
dental and other health services; indoor and outdoor exercise;
appropriate vocational and educational opportunities; rules and
discipline; religious services; vocational programs; library
services; visitation, mail and telephone privileges; and other
standards necessary to assure proper operation.
(2) Propose legislative rules for promulgation pursuant to
article three, chapter twenty-nine-a of this code, including,
without limitation, the minimum standards for juvenile detention
and correctional facilities as provided in subdivision (1) of
this section not later than the first day of January, one
thousand nine hundred ninety-nine.
(3) Develop a process for reviewing and updating these
standards as necessary to assure that they conform to current
law.
(4) Report periodically to the authority to advise and
recommend actions to be taken by the authority, if necessary, to
implement proper standards in the state's juvenile detention and
correctional facilities.
§31-20-10. Regional jail and correctional facility development
fund.
(a) The regional jail and correctional facility development
fund is hereby created and shall be composed of special accounts in the state treasury. The fund shall operate as a revolving
fund whereby all appropriations and payments to the fund may be
applied and reapplied by the authority for the purposes of this
article. Separate accounts may be established within the fund
for the purpose of identification of various revenue resources
and payment of specific obligations. These separate accounts may
be used for purposes that include, but are not limited to, the
construction, renovation or repair of specific facilities, cash
control, facility maintenance and for the individual operating
accounts of facilities operated by the authority. The authority
may create other separate accounts within the fund that it
determines are necessary for the efficient operation of the
authority.
(b) Revenues deposited into the fund shall be used to make
payments of interest and shall be pledged as security for bonds,
security interests or notes issued or lease-purchase obligations
entered into with another state entity by the authority pursuant
to this article.
(c) Whenever the authority determines that the balance in
the fund is in excess of the immediate requirements of this
article, it may request that the excess be invested until needed.
In this case the excess shall be invested in a manner consistent
with the investment of temporary state funds. Interest earned on
any money invested pursuant to this section shall be credited to
the fund.
(d) If the authority determines that funds held in the fund are in excess of the amount needed to carry out the purposes of
this article, it shall take any action that is necessary to
release the excess and transfer it to the general revenue fund of
the state treasury.
(e) The fund shall consist of the following:
(1) Amounts raised by the authority by the sale of bonds or
other borrowing authorized by this article;
(2) Moneys collected and deposited in the state treasury
which are specifically designated by acts of the Legislature for
inclusion into the fund;
(3) Contributions, grants and gifts from any source, both
public and private, which may be used by the authority for any
project or projects;
(4) All sums paid by the counties pursuant to subsection (h)
of this section; and
(5) All interest earned on investments made by the state
from moneys deposited in this fund.
(f) The amounts deposited in the fund shall be accounted for
and expended in the following manner:
(1) Amounts raised by the sale of bonds or other borrowing
authorized by this article shall be deposited in a separate
account within the fund and expended for the purpose of
construction, renovation and repair of correctional facilities,
regional jails and juvenile detention and correctional facilities
for which need has been determined by the authority;
(2) Amounts deposited from all other sources shall be pledged first to the debt service on any bonded indebtedness,
including lease-purchase obligations entered into by the
authority with another state entity or other obligation incurred
by borrowing of the authority;
(3) After any requirements of debt service have been
satisfied, the authority shall requisition from the fund the
amounts that are necessary to provide for payment of the
administrative expenses of this article;
(4) The authority shall requisition from the fund after any
requirements of debt service have been satisfied the amounts that
are necessary for the maintenance and operation of the
correctional facilities or regional jails or both that are
constructed pursuant to the provisions of this article and shall
expend those amounts for that purpose. The fund shall make an
accounting of all amounts received from each county by virtue of
any filing fees, court costs or fines required by law to be
deposited in the fund and amounts from the jail improvement funds
of the various counties. After the expenses of administration
have been deducted, the amounts expended in the respective
regions from those sources shall be in proportion to the
percentage the amount contributed to the fund by the counties in
each region bears to the total amount received by the fund from
those sources;
(5) Notwithstanding any other provisions of this article,
sums paid into the fund by each county pursuant to subsection (h)
of this section for each inmate shall be placed in a separate account and shall be requisitioned from the fund to pay for costs
incurred at the regional jail facility at which each inmate was
incarcerated; and
(6) Any amounts deposited in the fund from other sources
permitted by this article shall be expended in the respective
regions based on particular needs to be determined by the
authority.
(g) After a regional jail facility becomes available
pursuant to this article for the incarceration of inmates, each
county within the region shall incarcerate all persons whom the
county would have incarcerated in any jail prior to the
availability of the regional jail facility in the regional jail
facility except those whose incarceration in a local jail
facility used as a local holding facility is specified as
appropriate under the standards and procedures developed pursuant
to section nine of this article and who the sheriff or the
circuit court elects to incarcerate therein.
(h) When inmates are placed in a regional jail facility
pursuant to subsection (g) of this section, the county shall pay
into the regional jail and correctional facility development fund
a cost per day for each incarcerated inmate to be determined by
the regional jail and correctional facility authority according
to criteria and by procedures established by legislative rules
proposed for promulgation pursuant to article three, chapter
twenty-nine-a of this code to cover the costs of operating the
regional jail facilities of this state to maintain each inmate. The per diem costs for incarcerating inmates may not include the
cost of construction, acquisition or renovation of the regional
jail facilities: Provided, That each regional jail facility
operating in this state shall keep a record of the date and time
that an inmate is incarcerated, and a county may not be charged
for a second day of incarceration for an individual inmate until
that inmate has remained incarcerated for more than twenty-four
hours. Thereafter, in cases of continuous incarceration,
subsequent per diem charges shall be made upon a county only as
subsequent intervals of twenty-four hours pass from the original
time of incarceration.
§31-20-26. Legislative oversight committee.
The president of the Senate and the speaker of the House of
Delegates shall each designate five members of their respective
houses, at least one of whom shall be a member of the minority
party, to serve on a legislative oversight committee charged with
immediate and ongoing oversight of the authority and the
commissions, and functions and duties of the authority and the
commissions created by this article. This committee shall report
regularly at each legislative session on the implementation of
the purposes set forth in section one-a of this article. It
shall regularly investigate all matters relating to integrity,
probity and foresight in funding, operating and planning the
correctional system on state, regional and county levels, and may
include the planning, funding, constructing and operating of
juvenile detention and correctional facilities. Specifically, the committee shall study and make recommendations to the
Legislature as to the revision of the system of classifying adult
inmates, with a view variously to decreasing the prison
population confined in "maximum security" facilities and to
designating and meeting the needs of inmates classified as
elderly, disabled or otherwise handicapped. In addition, the
committee may study and make recommendations to the Legislature
relating to the system of juvenile detention and juvenile
corrections.
The committee shall further study and inform the state
judiciary of the impact of sentencing on the composition of the
prison population in proportion to the use of facilities. It
shall recommend alternatives to long-term sentencing, and shall
recommend measures to improve the quality of correctional staff
and facilitate nonconfrontational contacts with inmates. The
committee shall investigate means to structure inmates' time to
ensure genuine and willing reaccommodations to societal norms;
shall probe and coordinate all available means for funding state,
regional and county correctional facilities; and shall contract
with penal experts to study these issues in appropriate depth and
perspective. Annually, to predict a prudent use of available
funds, the committee shall study the profile of the inmate
population with regard to its age and social background and
needs.
The committee shall recommend to the Legislature the funding
required to execute these functions. It shall meet regularly with the governing body of the authority established in this
article to determine what may be required for full and timely
compliance with all federal mandates and court-ordered changes in
the correctional system and shall recommend funding for these
changes.
CHAPTER 33. INSURANCE.
ARTICLE 3. LICENSING, FEES AND TAXATION OF INSURERS.
§33-3-14. Annual financial statement and premium tax return;
remittance by insurer of premium tax, less certain
deductions; special revenue fund created.
(a) Every insurer transacting insurance in West Virginia
shall file with the commissioner, on or before the first day of
March, each year, a financial statement made under oath of its
president or secretary and on a form prescribed by the
commissioner. The insurer shall also, on or before the first day
of March of each year subject to the provisions of section
fourteen-c of this article, under the oath of its president or
secretary, make a premium tax return for the previous calendar
year, on a form prescribed by the commissioner showing the gross
amount of direct premiums, whether designated as a premium or by
some other name, collected and received by it during the previous
calendar year on policies covering risks resident, located or to
be performed in this state and compute the amount of premium tax
chargeable to it in accordance with the provisions of this
article, deducting the amount of quarterly payments as required
to be made pursuant to the provisions of section fourteen-c of this article, if any, less any adjustments to the gross amount of
the direct premiums made during such calendar year, if any, and
transmit with the return to the commissioner a remittance in full
for the tax due. The tax is the sum equal to two percent of the
gross direct premiums, including dividends, by whatever name
called, on participating policies applied in reduction of
premiums, less premiums returned to policyholders because of
cancellation of policies, and also includes any additional tax
due under section fourteen-a of this article. All taxes received
by the commissioner shall be paid into the insurance tax fund
created in subsection (b) of this section.
(b) There is created a special revenue fund in the state
treasury which is designated the "insurance
tax fund." This fund
is not part of the general revenue fund of the state. It
consists of all amounts deposited in the fund pursuant to
subsection (a) of this section, sections fifteen and seventeen of
this article, any appropriations to the fund, all interest earned
from investment of the fund and any gifts, grants or
contributions received by the fund. The treasurer shall
administer the fund.
(c) The treasurer shall dedicate and transfer from the
insurance
tax fund to the investment management board
, on or
before the tenth day of each month,
an amount equal to one
twelfth of the projected annual investment earnings to be paid
and the capital invested to be returned, as certified to the
treasurer by the investment management board,
into the regional jail and correctional facility investment fund
created under the
provisions of section twenty, article six, chapter twelve of this
code: Provided, That the amount dedicated and transferred may
not exceed twenty million dollars in any fiscal year. In the
event there are insufficient funds available in any month to
transfer the amount required pursuant to this subsection to the
regional jail and correctional facility investment fund, the
deficiency shall be added to the amount transferred in the next
succeeding month in which revenues are available to transfer the
deficiency. Each month a lien on the revenues generated from the
insurance
premium tax, the annuity tax and the minimum tax,
provided in this section and sections fifteen and seventeen of
this article, up to a maximum amount equal to one twelfth of the
projected annual principal and return is granted to the
investment management board to secure the investment made with
the regional jail and correctional facility authority pursuant to
section twenty, article six, chapter twelve of this code.
The
treasurer shall, no later than the last business day of each
month, transfer amounts the treasurer determines are not
necessary for making refunds under this article to meet the
requirements of subsection (d), section twenty, article six,
chapter twelve of this code, to the credit of the general revenue
fund.
(d) The amendment to this section enacted during the regular
session of the Legislature in the year one thousand nine hundred
ninety-eight is effective on the first day of July, one thousand
nine hundred ninety-eight.
§33-3-15. Annuity tax.
(a) Every life insurer transacting insurance in West
Virginia shall make a return to the commissioner annually on a
form prescribed by the commissioner, on or before the first day
of March, under the oath of its president or secretary, of the
gross amount of annuity considerations collected and received by
it during the previous calendar year on business transacted in
this state and stating the amount of tax due under this section,
together with payment in full for the tax due. The tax is the
sum equal to one per centum of the gross amount of the annuity
considerations, less annuity considerations returned and less
termination allowances on group annuity contracts. All the taxes
received by the commissioner shall be paid into the insurance tax
fund created in subsection (b), section fourteen of this article.
(b) Th amendment to this section enacted during the regular
session of the Legislature in the year one thousand nine hundred
ninety-eight is effective on the first day of July, one thousand
nine hundred ninety-eight.
§33-3-17. Minimum tax payable.
(a) The minimum amount of tax payable by any insurer
licensed in the state of West Virginia when considering the
aggregate payments due from all of the taxes imposed by this
article is two hundred dollars for any calendar year. This
minimum tax is payable annually on or before the first day of
March and shall be calculated on a form prescribed by the
commissioner. Except as otherwise provided in this section, all provisions of this article relating to the levy, imposition and
collection of the regular premium tax are applicable to the levy,
imposition and collection of this minimum tax. All moneys
received by the commissioner from this minimum tax shall be paid
into the insurance tax fund created in subsection (b), section
fourteen of this article.
(b) The amendment to this section enacted during the regular
session of the Legislature in the year one thousand nine hundred
ninety-eight is effective on the first day of July, one thousand
nine hundred ninety-eight.