hdj2010-03-03-50
__________*__________
Wednesday, March 3, 2010
FIFTIETH 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 Richard
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 Tuesday, March 2, 2010, being the first order of
business, when the further reading thereof was dispensed with and the same approved.
Committee Reports
Chairman Miley, from the Committee on the Judiciary, submitted the following report, which
was received:
Your Committee on the Judiciary has had under consideration:
Com. Sub. for S. B. 354, Updating terms and reporting procedures for traffic crashes,
S. B. 381, Regulating ability of Division of Banking employees to obtain certain loans,
S. B. 382, Relating to certain oil and gas drilling geologic reports,
S. B. 387, Providing certain mortgage loan originators be licensed or registered,
And,
S. B. 436, Updating language relating to process of incorporation,
And reports the same back with the recommendation that they each do pass.
Chairman Miley, from the Committee on the Judiciary, submitted the following report, which
was received:
Your Committee on the Judiciary has had under consideration:
S. B. 339, Correcting invalid code reference related to voter registration list,
And reports the same back, with amendment, with the recommendation that it do pass, as
amended.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of
the House of Delegates as follows:
Com. Sub. for H. B. 4128, Relating to insurance companies deemed to be in hazardous
financial condition.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page three, section three, line eighteen, by striking out the word "insured" and inserting
in lieu thereof the word "insurer".
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4128 - "A Bill to repeal §33-34-11 of the Code of West Virginia, 1931,
as amended; to repeal §33-34A-1, §33-34A-2, §33-34A-3, §33-34A-4, §33-34A-5, §33-34A-6, §33-
34A-7 and §33-34A-8 of said code; to amend and reenact §33-34-3 and §33-34-4 of said code; and
to further amend said article by adding thereto a new section, designated §33-34-3a, all relating to
determining when insurance companies are to be deemed to be in hazardous financial condition;
deleting severability provisions; providing for consideration of impact on creditors; providing for
entry of an order by the commissioner placing the insurer under administrative supervision; revising
standards and authority for the Insurance Commissioner's identification of companies in potentially
hazardous condition; providing for additional remedies; removing requirement of hearing prior to
entry of order of supervision; requiring a prompt hearing and providing procedure; and revising
confidentiality provisions."
On motion of Delegate Boggs, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 142), and there were--yeas
93, nays 2, absent and not voting 5, with the nays and absent and not voting being as follows:
Nays: McGeehan and Miller, J.
Absent And Not Voting: Argento, Cann, Doyle, Mahan and M. Poling.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4128) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
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. 4 - "A Bill to amend and reenact §17A-3-14 of the Code of West
Virginia, 1931, as amended, relating to motor vehicle registration generally; providing for the
issuance of a special CAMC Women and Children's Hospital license plate; providing for the
issuance of special registration plates for registered nurses and licensed practical nurses; providing
for the issuance of special registration plates for War on Terrorism Service Medal and the War on
Terrorism Service Medal logo; providing for the issuance of a special registration plate bearing the
inscription 'In God We Trust'; providing for the issuance of a special Friends of Coal license plate;
providing for the issuance of special Class G motorcycle registration plates to members of volunteer
fire departments; and assessing a special initial application fee and a special annual fee therefor";
which was referred to the Committee on Roads and Transportation the Finance.
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. 51- "A Bill to amend and reenact §48-9-205 of the Code of West
Virginia, 1931, as amended, relating to requiring a permanent parenting plan to contain a provision
concerning the custody of a child if either parent, as a member of the National Guard, a reserve
component or an active duty component, is mobilized, deployed or called to active duty"; which was
referred to the Committee on Veterans' Affairs and Homeland Security then the Judiciary.
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
S. B. 169 - "A Bill to amend and reenact §31-15-2 and §31-15-4 of the Code of West
Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated
§31-15-12b, all relating to the West Virginia Economic Development Authority; legislative findings;
definitions; and providing that, in developing criteria for loans to a tourism project, the authority
shall not require that any specific number of jobs are or will be created by the project, nor that any
existing jobs or jobs to be created by the project are to meet any specific compensation levels, nor
that any existing jobs or jobs be created by the project provide any specific employee benefits";
which was referred to the Committee on Finance.
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. 185 - "A Bill to amend the Code of West Virginia, 1931, as amended,
by adding thereto a new article, designated §11-13AA-1, §11-13AA-2, §11-13AA-3, §11-13AA-4,
§11-13AA-5, §11-13AA-6, §11-13AA-7, §11-13AA-8, §11-13AA-9, §11-13AA-10, §11-13AA-11,
§11-13AA-12 and §11-13AA-13, all relating generally to allowing tax incentives when computing
business franchise and West Virginia income tax liabilities, corporate or personal, as the case may
be, for profits attributed to the use of patents directly used in a manufacturing process or product
developed in this state or for royalties generated from patents directly used in a manufacturing
process or product developed in this state; providing short title, legislative findings and purpose;
defining certain terms; specifying terms, conditions and rules for taking of tax credits; providing for forfeiture of unused credit after period of years; allowing Tax Commissioner to prescribe rules;
requiring periodic reports by Tax Commissioner on cost and effect of tax incentives; providing rule
of construction; providing effective date; and specifying termination date"; which was referred to
the Committee on Finance.
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. 186 - "A Bill to amend and reenact §17C-5-7 of the Code of West
Virginia, 1931, as amended; to amend and reenact §17C-5A-1a AND §17C-5A-2 of said code; and
to amend said code by adding thereto a new section, designated §17C-5A-1b, relating to creating the
office of administrative law judges within the Department of Transportation; outlining the powers
of the administrative law judges; clarifying the effect of a no contest plea on the administrative
license suspension process; and requiring the state establish lawful arrest in administrative license
suspension proceedings where applicable"; which was referred to the Committee on the Judiciary
then Finance.
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. 219 - "A Bill to amend and reenact §5A-1-2, §5A-1-48 and §5A-1-49
of the Code of West Virginia, 1931, as amended, all relating to the management of motor vehicles
and aircraft owned or possessed by the state; authorizing the establishment of the Fleet Management
Office within the Department of Administration; authorizing the Secretary of the Department of Administration to promulgate emergency rules; and repealing certain exemptions to rules pertaining
to vehicles and aircraft owned or possessed by the state"; which was referred to the Committee on
Government Organization then Finance.
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
S. B. 235 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto
a new article, designated §5B-2H-1, §5B-2H-2, §5B-2H-3, §5B-2H-4, §5B-2H-5, §5B-2H-6, §5B-
2H-7, §5B-2H-8, §5B-2H-9, §5B-2H-10, §5B-2H-11 and §5B-2H-12, all relating to the Creative
Communities Development Pilot Program; providing legislative findings and intent; creating the
Creative Communities Development Fund; establishing the Creative Communities Development
Board; providing requirements for applications for the use of matching funds from the Creative
Communities Development Fund; providing for review of applications by the West Virginia
Development Office; establishing that the Creative Communities Development Board shall have the
authority to approve matching grants from Creative Communities Development Fund; establishing
matching requirements from applicants; establishing eligible expenditures; defining parameters of
agreement between West Virginia Development Office and a community for use of grant funds;
providing for a review and audit of expenditures by West Virginia Development Office; and
providing for review of Creative Communities Development Pilot Program"; which was referred to
the Committee on Energy, Industry and Labor, Economic Development and Small Business then
Finance.
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. 238 - "A Bill to amend and reenact §5A-11-3 and §5A-11-6 of the Code
of West Virginia, 1931, as amended, all relating to the use of mineral rights to benefit state agencies,
institutions or departments; and providing that the royalties and payments from land sales and
exchanges made by the Adjutant General's Department be retained in the fund managed by the
Adjutant General"; which was referred to the Committee on Natural Resources then the Judiciary.
A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate, to take effect from passage,
and requested the concurrence of the House of Delegates in the passage, of
Com. Sub. for S. B. 291 - "A Bill to amend and reenact article 8, chapter 64 of the Code of
West Virginia, 1931, as amended, relating generally to the promulgation of administrative rules by
the Department of Transportation; legislative mandate or authorization for the promulgation of
certain legislative rules by various executive or administrative agencies of the state; authorizing
certain of the agencies to promulgate certain legislative rules in the form that the rules were filed in
the State Register; authorizing certain of the agencies to promulgate certain legislative rules with
various modifications presented to and recommended by the Legislative Rule-Making Review
Committee; authorizing the Division of Motor Vehicles to promulgate a legislative rule relating to
the denial, suspension, revocation, restriction or nonrenewal of driving privileges; authorizing the
Division of Motor Vehicles to promulgate a legislative rule relating to the collection of tax on the
sale of a motor vehicle; authorizing the Commissioner of Highways to promulgate a legislative rule
relating to the use of state road rights-of-way and adjacent areas; and authorizing the Commissioner of Highways to promulgate a legislative rule relating to the transportation of hazardous waste upon
the road and highways"; which was referred to the Committee on the Judiciary.
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. 324 - "A Bill to amend the Code of West Virginia, 1931, as amended,
by adding thereto a new article, designated §11-13AA-1, §11-13AA-2, §11-13AA-3 and §11-13AA-
4; and to amend and reenact §11-21-12 of said code, all relating to establishing a tax credit for
graduates of a higher education institution for a portion of the interest paid on student loans;
providing for the promulgation of rules by the State Tax Commissioner for such purpose;
establishing a modification reducing federal adjusted gross income for recent graduates of higher
education institutions; and providing for the promulgation of rules by the Tax Commissioner for
such purpose"; which was referred to the Committee on Finance.
A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate, to take effect from passage,
and requested the concurrence of the House of Delegates in the passage, of
S. B. 331 - "A Bill to amend and reenact §5-10-25 of the Code of West Virginia, 1931, as
amended; and to amend and reenact §18-7A-25 of said code, all relating to qualifying for total and
permanent disability retirement in the West Virginia Public Employees Retirement System and the
State Teachers Retirement System"; which was referred to the Committee on Pensions and
Retirement then Finance.
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. 337 - "A Bill to amend and reenact §19-23-10, §19-23-13 and §19-23-
13b of the Code of West Virginia, 1931, as amended; to amend and reenact §29-22-18a of said code;
and to amend and reenact §29-22C-27 of said code, all relating to directing funds to existing West
Virginia Racing Commission Special Account - Unredeemed Pari-Mutuel Tickets account, to be
used to pay certain current and unpaid debt payments; placing certain funds in the West Virginia
Racing Commission Special Account - West Virginia Greyhound Breeding Development Fund;
removing a provision concerning the Thoroughbred Development Fund; eliminating a $200,000
annual payment for providing health and disability benefits to jockeys and their dependents;
eliminating an obsolete provision concerning a special trust fund; providing that the Racing
Commission may use current funds to pay for previously incurred obligations; certain receipts from
all thoroughbred and greyhound racetracks be divided on a pro rata basis between those racetracks;
and modifying a current Treasury account to include funds for greyhound adoption, spaying and
neutering"; which was referred to the Committee on Finance.
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. 365 - "A Bill to amend and reenact §60A-9-3 of the Code of West
Virginia, 1931, as amended, relating to updating the means of reporting information to the West
Virginia Controlled Substance Monitoring Program; and requiring all retail pharmacies to provide
their personnel online access to the West Virginia Controlled Substance Monitoring Program"; which was referred to the Committee on Health and Human Resources then the Judiciary.
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
S. B. 369 - "A Bill to amend and reenact §22-6-1 of the Code of West Virginia, 1931, as
amended; to amend and reenact §22C-8-2 of said code; and to amended and reenact §22C-9-2 of said
code, all relating to modifying the definitions of 'shallow well' and 'deep well' to allow a shallow
well to be drilled deeper; and correcting antiquated language throughout"; which was referred to the
Committee on the Judiciary.
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. 394 - "A Bill to amend and reenact §17A-3-3 of the Code of West
Virginia, 1931, as amended; to amend and reenact §17D-2A-1, §17D-2A-2, §17D-2A-3, §17D-2A-6,
§17D-2A-7 and § 17A-2A-12 of said code; to amend said code by adding thereto a new section,
designated §17D-2A-6a; and to amend said code by adding thereto a new section, designated §33-6-
31g, all relating to enforcement of the required security upon motor vehicles; requiring insurance
companies licensed to do business in this state to cooperate with the Division of Motor Vehicles or
its agent by verifying evidence of insurance coverage; authorizing the commissioner to establish a
system for online real-time insurance verification; and establishing administrative and criminal
penalties"; which was referred to the Committee on the Judiciary.
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. 462 - "A Bill to amend and reenact §15-2-7 of the Code of West
Virginia, 1931, as amended, relating to limiting the age of applicants for appointment to membership
in the West Virginia State Police"; which was referred to the Committee on the Judiciary.
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. 478 - "A Bill to repeal §5A-3-14, §5A-3-21, §5A-3-22, §5A-3-23, §5A-
3-24, §5A-3-25, §5A-3-26, §5A-3-37a, §5A-3-42, §5A-3-54, §5A-3-55 and §5A-3-55a of the Code
of West Virginia, 1931, as amended; and to amend and reenact §5A-3-1, §5A-3-2, §5A-3-3, §5A-3-
4, §5A-3-10, §5A-3-10b, §5A-3-11, §5A-3-11a, §5A-3-11c, §5A-3-12, §5A-3-15, §5A-3-18, §5A-3-
19, §5A-3-35, §5A-3-36, §5A-3-37 and §5A-3-45 of said code, all relating to the functions of the
purchasing director; procurement process; documentation of inventory; and transportation of surplus
property"; which was referred to the Committee on Government Organization then Finance.
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
S. B. 488 - "A Bill to amend and reenact §5B-1-1a of the Code of West Virginia, 1931, as
amended, relating to authorizing the Marketing and Communications Office of the Department of
Commerce to promote and sell West Virginia-related items, as well as sell advertising in its
publications, events or promotions"; which was referred to the Committee on Finance.
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. 489 - "A Bill to amend and reenact §22-15A-16 of the Code of West
Virginia, 1931, as amended, relating to setting recycling goals; conducting a one-time study to
determine the recycling rate in West Virginia; requiring the submission of recycling data; and
initiating a one-time award program to recognize certain recycling leaders"; which was referred to
the Committee on Government Organization then Finance.
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. 493 - "A Bill to amend the Code of West Virginia, 1931, as amended,
by adding thereto a new article, designated §11-6K-1, §11-6K-2, §11-6K-3, §11-6K-4, §11-6K-5,
§11-6K-6 and §11-6K-7; and to amend said code by adding thereto a new article, designated §11-
13AA-1, §11-13AA-2, §11-13AA-3, §11-13AA-4, §11-13AA-5, §11-13AA-6, §11-13AA-7, §11-
13AA-8, §11-13AA-9, §11-13AA-10, §11-13AA-11, §11-13AA-12, §11-13AA-13, §11-13AA-14,
§11-13AA-15, §11-13AA-16, §11-13AA-17 and §11-13AA-18, all relating generally to the West
Virginia Economic Development Act of 2010, consisting of the Twenty-First Century Business
Technologies Property Valuation Act and, as to such act, specifying method for valuation of certain
property; providing for initial determination by county assessors of whether certain property is used
in a twenty-first century business technology; specifying procedure for protest and appeal of
determination by county assessor; requiring the West Virginia Development Office to report to the Joint Committee on Government and Finance on the economic impact of such valuation beginning
in 2014; consisting of the West Virginia Twenty-First Century Tax Credit Act and, as to such act,
providing short title, setting forth purpose and legislative findings; defining terms; allowing credit
and exemption from certain taxes; providing for computation of credit, application of credit and
period for which credit is allowed; requiring application to claim credit; requiring that new jobs be
good-paying jobs with health benefits; requiring identification of investment credit property and
recomputation of credit in event of premature disposition of investment property; providing for
forfeiture of unused tax credits and redetermination of credit allowed; imposing recapture tax under
specified circumstances; allowing transfer of qualified investment to successors; providing rules for
interpretation and construction of act; providing for tax credit review and accountability; specifying
effective date; and providing severability clause"; which was referred to the Committee on Finance.
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. 505 - "A Bill to amend and reenact §19-1B-3, §19-1B-4, §19-1B-5, §19-
1B-7, §19-1B-11 and §19-1B-12a of the Code of West Virginia, 1931, as amended, all relating to
updating the Logging Sediment Control Act; providing exclusion for ten acres or less of privately
owned land; establishing biennial licensure and fee; and making technical corrections"; which was
referred to the Committee on Government Organization then Finance.
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
S. B. 510 - "A Bill to amend and reenact §20-2-42 of the Code of West Virginia, 1931, as
amended, relating to indexing Division of Natural Resources license and stamp fees; and making
technical corrections"; which was referred to the Committee on Finance.
A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate, to take effect July 1, 2010,
and requested the concurrence of the House of Delegates in the passage, of
Com. Sub. for S. B. 518 - "A Bill to amend the Code of West Virginia, 1931, as amended,
by adding thereto a new article, designated §5B-8-1, §5B-8-2, §5B-8-3, §5B-8-4, §5B-8-5 and §5B-
8-6, all relating to the creation of the Governor's Commission on Shaping the Future of Energy for
the United States; making legislative findings; setting forth the members and officers of the
commission; setting the compensation and the funding for the expenses of the commission; granting
powers and duties to the commission; requiring the commission to report to the Joint Committee on
Government and Finance and the Governor; and providing for the termination of the commission";
which was referred to the Committee on Energy, Industry and Labor, Economic Development and
Small Business then Finance.
A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate, to take effect July 1, 2010,
and requested the concurrence of the House of Delegates in the passage, of
S. B. 519 - "A Bill to amend and reenact §8-22A-28 of the Code of West Virginia, 1931, as
amended, relating to extending Social Security benefits to members of the West Virginia Municipal
Police Officers and Firefighters Retirement System"; which was referred to the Committee on
Political Subdivisions then Finance.
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
S. B. 527 - "A Bill to amend and reenact §29-18-6 of the Code of West Virginia, 1931, as
amended; and to amend said code by adding thereto a new section, designated §29-18-25, all relating
to powers, duties and responsibilities of the West Virginia State Rail Authority; requiring the
authority to establish a state plan for transportation and local rail services; and providing what the
state plan may include"; which was referred to the Committee on Finance.
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. 538 - "A Bill to amend and reenact §3-8-1a and §3-8-5a of the Code
of West Virginia, 1931, as amended, all relating generally to elections; defining 'charitable
organization'; and making technical corrections throughout"; which was referred to the Committee
on the Judiciary.
A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate, to take effect from passage,
and requested the concurrence of the House of Delegates in the passage, of
Com. Sub. for S. B. 543 - "A Bill to amend and reenact §18B-17-2 of the Code of West
Virginia, 1931, as amended, relating to authorizing a rules for the Higher Education Policy
Commission regarding the Energy and Water Savings Revolving Loan Fund Program and PROMISE
(Providing Real Opportunities for Maximizing In-State Student Excellence) scholarship."
At the respective requests of Delegate Boggs, and by unanimous consent, reference of the
bill (Com. Sub. for S. B. 543) to a committee was dispensed with, and it was taken up for immediate
consideration, read a first time and ordered to second reading.
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. 567 - "A Bill to amend the Code of West Virginia, 1931, as amended,
by adding thereto a new article, designated §20-16-1, §20-16-2, §20-16-3, §20-16-4, §20-16-5, §20-
16-6, §20-16-7 and §20-16-8, all relating to responsibility and liability of nonprofit youth
organizations, participants and providers in adventure or recreational activities; providing a short
title, legislative purpose and definitions; providing the duties and liabilities of nonprofit youth
organizations or providers; and providing duties and liabilities of participant"; which was referred
to the Committee on Natural Resources then the Judiciary.
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. 587 - "A Bill to repeal §30-26-4 of the Code of West Virginia, 1931,
as amended; to amend and reenact §30-26-2 and §30-26-3 of said code; and to amend said code by
adding thereto a new section, designated §30-26-3a, all relating to the Board of Hearing-Aid Dealers
generally; prohibiting physicians from permitting any unlicensed person to engage in the practice of
dispensing hearing aids; clarifying powers and duties of the board; imposing term limits on board
members; removing the statutory per diem salary granted to board members; specifying provisions for administrative fees; and removing the requirement that the Department of Health and Human
Resources provide administrative assistance to the board"; which was referred to the Committee on
Government Organization.
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. 596 - "A Bill to amend and reenact §5A-10-2 and §5A-10-9 of the Code
of West Virginia, 1931, as amended, all relating to exempting the Adjutant General and the West
Virginia National Guard from state leasing and accounting requirements"; which was referred to the
Committee on Government Organization.
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. 597 - "A Bill to amend and reenact §16-2I-2 of the Code of West
Virginia, 1931, as amended, relating to requiring physicians or those assisting them in performing
an elective abortion to provide to the patient the opportunity to view an ultrasound image of a live
fetus or a fetus with a fatal anomaly before performance of an elective abortion procedure"; which
was referred to the Committee on Health and Human Resources then the Judiciary.
A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate, to take effect from passage,
and requested the concurrence of the House of Delegates in the passage, of
Com. Sub. for S. B. 606 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §29-29-1, §29-29-2, §29-29-3, §29-29-4, §29-29-5, §29-
29-6 and §29-29-7, all relating to creating the West Virginia Ski Resort Industry Commission to
promote the continued development of the state's ski resort industry"; which was referred to the
Committee on Finance.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had agreed to the appointment of a
Committee of Conference of three from each house on the disagreeing votes of the two houses as
to
S. B. 611, Removing location requirement for certain higher education offices.
The message further announced that the President of the Senate had appointed as conferees
on the part of the Senate the following:
Senators McCabe, Plymale and Facemyer.
A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate, to take effect from passage,
and requested the concurrence of the House of Delegates in the passage, of
S. B. 612 - "A Bill to amend and reenact §29-22-18 and §29-22-18a of the Code of West
Virginia, 1931, as amended; and to amend and reenact §31-15-16a of said code, all relating to
funding of higher education capital projects; authorizing the Governor to certify certain revised lists
of capital improvement projects; authorizing the Economic Development Authority to issue bonds
in certain amounts and for certain purposes; specifying that the Economic Development Authority
may grant second-in-priority and third-in-priority liens on proceeds of the State Lottery Fund up to
a certain amount in favor of the bonds; increasing the amount paid annually to the Higher Education Improvement Fund from $10 million to $15 million; and making other technical corrections"; which
was referred to the Committee on Finance.
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. 616 - "A Bill to amend and reenact §7-14-6, §7-14-17 and §7-14-19a
of the Code of West Virginia, 1931, as amended; and to amend and reenact §7-14C-1, §7-14C-3 and
§7-14C-5 of said code, all relating to deputy sheriffs; permitting the civil service commission of each
county to hear appeals from hearing boards; establishing time periods for the filing of answers and
appeals; permitting all deputy sheriffs to perform police work in addition to their normal duties;
eliminating the authority of a county commission from approving the sheriff's plan regarding
additional police work by deputy sheriffs; eliminating written reprimands and transfers for purposes
of punishment from the definition of 'punitive action' as it applies to deputy sheriffs; and permitting
a deputy sheriff to a hearing in front of a hearing board or the deputy sheriff's civil service
commission"; which was referred to the Committee on Veterans' Affairs and Homeland Security
then the Judiciary.
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. 624 - "A Bill to amend and reenact §31B-2-203 and §31B-2-211 of the
Code of West Virginia, 1931, as amended; to amend and reenact §31B-10-1002 of said code; to
amend and reenact §31D-2-202 of said code; to amend and reenact §31D-15-1503 of said code; to amend and reenact §31E-2-202 of said code; to amend and reenact §31E-14-1403 of said code; and
to amend and reenact §47-9A-2 and §47-9A-3 of said code, all relating to business organizations and
associations generally; providing consistency of filing deadlines for all organizations filing annual
reports with the Secretary of State; and requiring e-mail addresses for informational notices"; which
was referred to the Committee on the Judiciary.
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. 626 - "A Bill to amend and reenact §18A-3-1 and §18A-3-2a of the
Code of West Virginia, 1931, as amended, all relating to providing eligibility for a license to teach
in the public schools for candidates who are not United States citizens under certain conditions";
which was referred to the Committee on Education then the Judiciary.
A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate, to take effect July 1, 2010,
and requested the concurrence of the House of Delegates in the passage, of
Com. Sub. for S. B. 631 - "A Bill to amend and reenact §18-2A-1, §18-2A-2, §18-2A-3,
§18-2A-4, §18-2A-5, §18-2A-6, §18-2A-7, §18-2A-8 and §18-2A-9 of the Code of West Virginia,
1931, as amended, all relating generally to instructional resources; process for approval and adoption
of instructional resources in public schools; replacing the terms 'textbooks', 'instructional materials'
and 'learning technologies' with 'instructional resources' and modifying affected code provisions
accordingly; modifying limit on adoption cycles; providing for listing of instructional resources on
the state multiple list; requiring a method for review and adding new and substantially revised resources to the multiple list; providing for county waivers of adoption cycles; providing method for
counties to select new or different resource before end of a contract period; providing a method for
vendor update of resources; revising the bidding, selection and approval process; permitting the
multiple list to be published in an electronic format; requiring contracts to be filed pursuant to the
state board process; providing for review of electronic instructional resources; providing for regional
education service agency level selection teams; and ensuring equity of access to electronic
instructional resources for all students."
At the respective requests of Delegate Boggs, and by unanimous consent, reference of the
bill (Com. Sub. for S. B. 631) to a committee was dispensed with, and it was taken up for immediate
consideration, read a first time and ordered to second reading.
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. 656 - "A Bill to amend the Code of West Virginia, 1931, as amended,
by adding thereto a new section, designated §24-2-1j, relating to special rates for energy-intensive
industrial consumers of electric power; setting forth legislative findings on energy-intensive
industrial consumers of electric power; defining certain terms; enabling the Public Service
Commission to establish special rates for energy-intensive industrial consumers of electric power;
setting forth factors that the Public Service Commission may take into consideration in establishing
special rates for energy-intensive industrial consumers of electric power, in addition to factors that
may already be considered by the Public Service Commission in its rate-setting process; authorizing
the Public Service Commission to adopt mechanisms reasonably designed to assure appropriate flexibility and predictability of special rates; establishing procedures for application to the Public
Service Commission for a special rate; setting forth data and information to be included in an
application for a special rate; and establishing qualifications for eligibility for a special rate."
At the respective requests of Delegate Boggs, and by unanimous consent, reference of the
bill (Com. Sub. for S. B. 656) to a committee was dispensed with, and it was taken up for immediate
consideration, read a first time and ordered to second reading.
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
S. B. 664 - "A Bill to amend and reenact §44A-3-1 and §44A-3-2 of the Code of West
Virginia, 1931, as amended, all relating to the duties and reports of the guardian; requiring the
guardian to act as a fiduciary in the best interests of the protected person; requiring the guardian to
address social activities of protected person; permitting petition of interested party; permitting court
or Mental Hygiene Commissioner to order guardian to take appropriate actions; and requiring
guardian to report on social activities of protected person"; which was referred to the Committee on
the Judiciary.
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. 690 - "A Bill to amend the Code of West Virginia, 1931, by adding
thereto a new section, designated §60-3A-3a; and to amend and reenact §60-3A-4 of said code, all
relating to liquor sampling; adding definitions; authorizing liquor sampling on Class A retail licenses; and penalties"; which was referred to the Committee on Government Organization.
A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate, to take effect from passage,
and requested the concurrence of the House of Delegates in the passage, of
S. B. 697 - "A Bill to amend and reenact §15-5-15 of the Code of West Virginia, 1931, as
amended, relating to allowing the Fire Commissioner, upon petition of the State Fire Marshal, to
allow certain prior convictions to be waived in order for otherwise disqualified persons to serve as
volunteer firefighters"; which was referred to the Committee on the Judiciary.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence
of the House of Delegates in the adoption of the following concurrent resolution, which was read by
its title and referred to the Committee on Rules:
S. C. R. 30 - "Requesting the Division of Highways name bridge number 355-8-1.90, located
in Wyoming County, the 'Hubert Cline Memorial Bridge'."
Whereas, Hubert Cline was born in Steeles, West Virginia, on August 11, 1920; and
Whereas, Hubert Cline enlisted in the United States Army, served in World War II and then
was stationed in Berlin, Germany; and
Whereas, Hubert Cline returned to the United States and worked for his father's saw mill,
cutting and hauling timber; and
Whereas, Hubert Cline also had a career in public service as a Wyoming County Deputy
Sheriff and later became a Court Bailiff at the Wyoming County Courthouse, until he retired; and
Whereas, Hubert Cline dedicated himself to lobbying the West Virginia Department of Transportation to make repairs to a road and bridge in his community for the safety of his family and
its citizens; and
Whereas, Hubert Cline was married to his beloved wife, Erika, with whom he shared the
joy of having five children; and
Whereas, Sadly, Hubert Cline passed from this life in September 2005, leaving behind many
family and friends, as well as a grateful community, state and nation; and
Whereas, Hubert Cline's efforts with West Virginia Department of Transportation paid off,
as the road was repaired and a new bridge was constructed in 2009, but he unfortunately never got
to see the result of his hard work; and
Whereas, It is fitting, to honor the memory of Hubert Cline for his dedicated service to his
community, state and nation, by naming bridge number 355-8-1.90, located in Wyoming County,
the "Hubert Cline Memorial Bridge"; therefore, be it
Resolved by the West Virginia Legislature:
That the Legislature hereby requests the Division of Highways name bridge number
355-8-1.90, located in Wyoming County, the "Hubert Cline Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways is hereby requested to have made and be
placed signs identifying the bridge as the "Hubert Cline Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this
resolution to the Secretary of the Department of Transportation and the family of Hubert Cline.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence
of the House of Delegates in the adoption of the following concurrent resolution, which was read by its title and referred to the Committee on Rules:
S. C. R. 35 - "Requesting the Division of Highways name bridge number 30-3-5-3.01,
located in Mingo County, the 'Virgil and Marcella Faye Marcum Memorial Bridge'."
Whereas, Virgil Marcum was born January 12, 1926, in Mingo County, West Virginia; and
Whereas, Virgil Marcum served his country admirably in the United States Navy in World
War II from 1944 to 1946; and
Whereas, Virgil Marcum, after being honorably discharged from the Navy, worked in the
mining and lumber industry for nearly 57 years; and
Whereas, Marcella Faye Marcum was born January 19, 1927, in Wayne County, West
Virginia; and
Whereas, Marcella Faye Marcum was a business owner for more than 50 years and was
devoted to helping less fortunate people in her community and especially children; and
Whereas, Virgil and Marcella Faye Marcum were married on November 3, 1947, and shared
the joy of having four children, Sadie, Harriet, Lonnie and Shennie, and raised them in Breeden,
West Virginia; and
Whereas, Sadly, Virgil Marcum passed away, and Marcella Faye Marcum departed this life
on July 5, 2002, leaving behind a grateful family and community; and
Whereas, It is fitting, to honor the memory of Virgil and Marcella Faye Marcum, who
served their community and state honorably, by naming bridge number 30-3-5-3.01, located in
Mingo County, the "Virgil and Marcella Faye Marcum Memorial Bridge"; therefore, be it
Resolved by the West Virginia Legislature:
That the Legislature hereby requests the Division of Highways name bridge number 30-3-5-3.01, located in Mingo County, the "Virgil and Marcella Faye Marcum Memorial Bridge"; and, be
it
Further Resolved, That the Division of Highways is hereby requested to have made and be
placed signs identifying the bridge as the "Virgil and Marcella Faye Marcum Memorial Bridge"; and,
be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this
resolution to the Secretary of the Department of Transportation and the family of Virgil and Marcella
Faye Marcum.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence
of the House of Delegates in the adoption of the following concurrent resolution, which was read by
its title and referred to the Committee on Rules:
S. C. R. 36 - "Requesting the Division of Highways name bridge number 03-85-27.81,
located in Boone County, the 'Kevin Lee Ball Memorial Bridge'."
Whereas, Kevin Lee Ball was born October 4, 1986, and was a resident of Van, Boone
County, West Virginia; and
Whereas, Kevin Lee Ball was the son of Kenneth Lee Ball and Brenda Sue Price, both of
Robinson, West Virginia, and the older brother of David Lee Ball; and
Whereas, Kevin Lee Ball was the grandson of Carolyn Jordan and Danny Lee Ball, of
Robinson, West Virginia, and Lora Jean Smith and the late Bobby Smith, of Madison, West
Virginia; and
Whereas, Kevin Lee Ball was a graduate of Van High School and was named Homecoming King his senior year; and
Whereas, Kevin Lee Ball was a dedicated public servant, serving the community of
Chapmanville, West Virginia, as a police officer; and
Whereas, Sadly, Kevin Lee Ball lost his life in a motorcycle accident on June 30, 2007,
tragically bring an end to young life that was full of promise; and
Whereas, Kevin Lee Ball left behind a host of family and friends, all of whom miss him
dearly; and
Whereas, It is fitting, to honor the memory of Kevin Lee Ball, who served his community
and state honorably, by naming bridge number 03-85-27.81, located in Boone County, the "Kevin
Lee Ball Memorial Bridge"; therefore, be it
Resolved by the West Virginia Legislature:
That the Legislature hereby requests the Division of Highways name bridge number 03-85-
27.81, located in Boone County, the "Kevin Lee Ball Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways is hereby requested to have made and be
placed signs identifying the bridge as the "Kevin Lee Ball Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this
resolution to the Secretary of the Department of Transportation and the family of Kevin Lee Ball.
Resolutions Introduced
Delegate Boggs offered the following resolution, which was read by its title and referred to
the Committee on Rules:
H. C. R. 82 - "Requesting the Division of Highways to name the bridge on County Rt. 9 near
Rosedale in Braxton County, bridge number 4-9-11.22, as the 'P.F.C. Daniel F. Tallman Memorial Bridge'."
Whereas, P.F.C. Daniel F. Tallman was born on November 23, 1941, in Rosedale, the son
of Trader and Thelma Ferrell Tallman; and
Whereas, P.F.C. Tallman grew up in Braxton County, attended Normantown High School,
played basketball and loved to hunt and fish; and
Whereas, P.F.C. Tallman enlisted in the U. S. Army in 1964, served in Company B, 1
st
Battalion, 28
th Infantry, First Division and died on November 24, 1965 in combat while in Vietnam;
and
Whereas, P.F.C. Tallman was awarded numerous service and combat medals while serving
in Vietnam, including the Purple Heart; and
Whereas, It is fitting to honor P.F.C. Tallman for his service to his community, his state,
his country and giving the ultimate sacrifice by naming the bridge on County Rt. 9 near Rosedale in
Braxton County, bridge number 4-9-11.22, as the "P.F.C. Daniel F. Tallman Memorial Bridge";
therefore, be it
Resolved by the West Virginia Legislature:
That the Legislature hereby requests the Division of Highways to name the bridge on County
Rt. 9 near Rosedale in Braxton County, bridge number 4-9-11.22, as the "P.F.C. Daniel F. Tallman
Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways is hereby requested to have made and be
placed signs identifying the bridge as the "P.F.C. Daniel F. Tallman Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the House of Delegates forward a certified copy of this
resolution to the Secretary of the Department of Transportation, to his brother, Paul (Bill) Tallman, and his four surviving sisters, Carol Kimble, Charlotte, Connie Hientzman and Shannon Pritt.
Delegate Boggs offered the following resolution, which was read by its title and referred to
the Committee on Rules:
H. C. R. 83 - "Requesting the Division of Highways to name the bridge on County Rt. 40
near Herold in Braxton County, bridge number 04-40-8.80, as the 'Carmel M. Johnson Memorial
Bridge'."
Whereas, Carmel M. Johnson was born on October 18, 1905 in Braxton County, died on
August 31, 1999 and was a charter member of the Peters Ridge Community Church; and
Whereas, Mr. Johnson, during 1921 and 1922, helped build the original bridge near Herold
that the present one replaces; and
Whereas, While building the original bridge, Mr. Johnson worked ten hour days, walked
three miles to and from the work site and was instrumental in the workers' efforts in getting their pay
increased from 15 cents per hour to 25 cents per hour; and
Whereas, Mr. Johnson worked at the Goodrich plant in Charleston during the 1940's, drove
a school bus in Braxton County for seventeen years and founded the Johnson Campground near
Herold; and
Whereas, Mr. Johnson was an avid outdoors man who loved hunting and fishing, gospel
sings and helping his neighbors; and
Whereas, It is fitting to honor Carmel M. Johnson for his service to his community and his
state by naming the bridge on County Rt. 40 near Herold in Braxton County, bridge number 04-40-
8.80, as the "Carmel M. Johnson Memorial Bridge"; therefore, be it
Resolved by the West Virginia Legislature:
That the Legislature hereby requests the Division of Highways to name the bridge on County
Rt. 40 near Herold in Braxton County, bridge number 04-40-8.80, as the "Carmel M. Johnson
Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways is hereby requested to have made and be
placed signs identifying the bridge as the "Carmel M. Johnson Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the House of Delegates forward a certified copy of this
resolution to the Secretary of the Department of Transportation, to his sons, Bill Johnson and John
Johnson and to his daughters, Mary Jo Browning and Anna Mae Murphy.
Special Calendar
Third Reading
Com. Sub. for H. B. 4359, Requiring local labor for public construction projects; on third
reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 143),
and there were--yeas 92, nays 5, absent and not voting 3, with the nays and absent and not voting
being as follows:
Nays: Andes, Armstead, Blair, Carmichael and Walters.
Absent And Not Voting: Argento, Mahan and M. Poling.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 4359) passed.
On motion of Delegate Miley, the title of the bill was amended to read as follows:
H. B. 4359 - "A Bill to amend and reenact §21-1C-2 of the Code of West Virginia, 1931, as
amended, relating to requiring local labor for public construction projects; reducing the dollar amount of the applicable construction project to $500,000; reducing the amount of miles for the local
labor market to fifty miles; and clarifying the definition of local labor market."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for H. B. 4397, Requiring the Superintendent of the State Police to implement
a plan to increase the number of troopers; on third reading, coming up in regular order, was read a
third time.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 144),
and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being
as follows:
Absent And Not Voting: Argento, Mahan and M. Poling.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 4397) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for H. B. 4504, Adopting the Uniform State Military Code of Justice into West
Virginia law; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 145),
and there were--yeas 96, nays 1, absent and not voting 3, with the nays and absent and not voting
being as follows:
Nays: McGeehan.
Absent And Not Voting: Argento, Mahan and M. Poling.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 4504) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for H. B. 4513, Establishing requirements for Marcellus gas well operations use
of water resources; on third reading, coming up in regular order, was read a third time.
Delegate Armstead requested to be excused from voting on the passage of Com. Sub. for H.
B. 4513 under the provisions of House Rule 49 stating that his employer engages in drilling and
production of gas in the Marcellus formation.
The Speaker refused to excuse the Delegate from voting, stating that he was a member of a
class of persons possibly to be affected by the passage of the bill and that he demonstrated no direct
personal or pecuniary interest therein.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 146),
and there were--yeas 89, nays 8, absent and not voting 3, with the nays and absent and not voting
being as follows:
Nays: Andes, Armstead, Blair, Carmichael, Hartman, Ross, Schoen and Walters.
Absent And Not Voting: Argento, Mahan and M. Poling.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 4513) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for H. B. 4525, Changing the composition, powers and responsibilities of the board of Coal Mine Health and Safety; on third reading, coming up in regular order, was read a third
time.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 147),
and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being
as follows:
Absent And Not Voting: Argento, Mahan and M. Poling.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 4525) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
H. B. 4669, Granting exceptions to certain statutes to innovation zone plans approved by
state board; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 148),
and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being
as follows:
Absent And Not Voting: Argento, Mahan and M. Poling.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (H. B. 4669) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for H. B. 3152, Athletic Trainers Registration Act; on third reading, coming up
in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 149),
and there were--yeas 92, nays 5, absent and not voting 3, with the nays and absent and not voting
being as follows:
Nays: Canterbury, Ellem, Lane, J. Miller and Walters.
Absent And Not Voting: Argento, Mahan and M. Poling.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 3152) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for H. B. 4130, Creating the West Virginia Supreme Court of Appeals Public
Campaign Financing Pilot Program; on third reading, coming up in regular order, was read a third
time.
Delegates Armstead, Ellem, Hunt, Lane, Manchin, Miley, Reynolds, Schoen, Schott and
Smith requested to be excused from voting on the passage of Com. Sub. for H. B. 4130 under the
provisions of House Rule 49, stating that they were licensed attorneys required t pay fees under the
provisions of the bill.
The Speaker refused to excuse the Members from voting, stating that they were members of
a class of persons possibly to be affected by the passage of the bill and that they demonstrated no
direct personal or pecuniary interest therein.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 150),
and there were--yeas 67, nays 30, absent and not voting 3, with the nays and absent and not voting
being as follows:
Nays: Anderson, Andes, Armstead, Azinger, Blair, Border, Canterbury, Cowles, Evans,
Hamilton, Hartman, Ireland, McGeehan, Miller, C, Miller, J, Moye, Overington, Porter, Rodighiero,
Romine, Ross, Rowan, Schadler, Shott, Sobonya, Sumner, Susman, Walker, D, Walters and Wooton.
Absent And Not Voting: Argento, Mahan and M. Poling.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 4130) passed.
On motion of Delegate White, the title of the bill was amended to read as follows:
H. B. 4130 - "A Bill to amend and reenact §3-1A-1, §3-1A-4 and §3-1A-5 of the Code of
West Virginia, 1931, as amended; and to amend said code by adding thereto a new article, designated
§3-12-1, §3-12-2, §3-12-3, §3-12-4, §3-12-5, §3-12-6, §3-12-7, §3-12-8, §3-12-9, §3-12-10, §3-12-
11, §3-12-12, §3-12-13, §3-12-14, §3-12-15, §3-12-16 and §3-12-17, all relating to creating the West
Virginia Supreme Court of Appeals Public Campaign Financing Pilot Program; giving additional
duties and per diem pay to the State Election Commission; authorizing the State Election
Commission to use video, telephone and Internet conferencing; providing alternative public
campaign financing option for candidates for the West Virginia Supreme Court of Appeals in 2012;
setting forth short title and certain legislative findings and declarations; defining terms; specifying
that the provisions of the act are applicable to candidates for the West Virginia Supreme Court of
Appeals in the 2012 primary and general elections; establishing the Supreme Court of Appeals
Public Campaign Financing Fund and sources of revenue for the fund; authorizing transfer from the
Purchasing Card Administration Fund to the fund for three years; authorizing attorney fees;
authorizing fair administration of justice court fees; requiring an applicant for public campaign
financing to complete a declaration of intent and setting forth the manner in which an application for funding may be made; setting forth eligibility criteria for qualifying candidates; allowing
participating candidates to raise funds from private sources and spend exploratory contributions;
requiring candidates seeking public campaign funds to collect a required number of qualifying
contributions; requiring candidates to provide detailed receipts to contributors and to the state
Election Commission for exploratory and qualifying contributions; requiring participating candidates
to comply with all provisions of the act; requiring the state Election Commission to certify eligible
candidates and setting forth the procedure for certification; providing for challenges to certification;
providing for revocation of certification; providing for withdrawal from program; providing for
distribution of funds from the Public Campaign Financing Fund to qualified candidates for funding
election campaigns; specifying the amount of funds available for each candidate and when the funds
become available; setting forth restrictions on participating candidates' contributions and spending;
prohibiting participating candidates from accepting private contributions other than as specifically
set forth in the act; providing for repayment of funds under certain circumstances; prohibiting the
use of personal funds for certain purposes; permitting qualified candidates to raise funds from private
sources when there is insufficient money in the Public Campaign Financing Fund to make a
complete distribution to all qualified candidates; requiring certain disclosures; requiring candidates
to keep records and report to the state Election Commission; providing for additional funds when
independent expenditures or opponent expenditures exceed certain limits; setting forth certain duties
of the state Election Commission and the Secretary of State; authorizing legislative rules; authorizing
the creation of a voters' guide; providing for the deposit of certain revenue into the fund; requiring
repayment of excessive expenditures by candidates; providing both civil and criminal penalties for
violations of the act; and expiring the act in 2013."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Delegates Butcher, Hunt and Skaff announced that they were absent when the vote was taken
on Roll No. 151 , and that had they been present, they would have voted "Yea" thereon.
Delegates Brown and Givens announced that they were absent when the votes were taken on
Roll Nos. 151, 152 and 153, and that had they been present, they would have voted "Yea" thereon.
Delegate Louisos announced that he was absent when the votes were taken on Roll Nos. 151
and 152 , and that had he been present, he would have voted "Yea" thereon.
Delegate Shott announced that he was absent when the votes were taken on Roll Nos. 144
and 151, and that had he been present, he would have voted "Yea" thereon.
At 12:27 p.m., on motion of Delegate Boggs, the House of Delegates recessed until 2:30 p.m.,
and reconvened at that time.
* * * * * * *
Afternoon Session
* * * * * * *
Special Session
Reordering of the Calendar
Delegate
Boggs
announced that the Committee on Rules had transferred
Com. Sub. for H.
B. 4563 and Com. Sub. for H. B. 4665, on third reading, Special Calendar, to the House Calendar.
Delegate Boggs also announced that the Committee on Rules had transferred Com. Sub. for
H. B. 4223 and Com. Sub. for H. B. 4314, on third reading, House Calendar, to the Special Calendar.
Third Reading
Com. Sub. for H. B. 4155, Permitting revenues allocated to volunteer and part time fire
departments to be used for Workers' Compensation premiums and length of service awards; on third
reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 151),
and there were--yeas 90, nays none, absent and not voting 10, with the absent and not voting being
as follows:
Absent and Not Voting: Argento, Brown, Butcher, Givens, Hunt, Louisos, Mahan, M.
Poling, Skaff and Walters.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 4155) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for H. B. 4217, Requiring the West Virginia Enhanced 911 Council to propose
Emergency Medical Dispatch procedures; on third reading, coming up in regular order, was read a
third time.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 152),
and there were--yeas 93, nays none, absent and not voting 7, with the absent and not voting being
as follows:
Absent and Not Voting: Argento, Brown, Givens, Louisos, Mahan, M. Poling and
Walters.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4217) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for H. B. 4356, Allowing a nonresident to have an additional ten days to pay his
or her fine before the magistrate court sends notice to the DMV; on third reading, coming up in
regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken
(Roll No. 153),
and there were--yeas 94, nays none, absent and not voting 6, with the absent and not voting being
as follows:
Absent and Not Voting: Argento, Brown, Givens, Mahan, M. Poling, and Walters.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 4356) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for H. B. 4382, Providing for forfeiture of property used in various crimes and
the disposition of such property; on third reading, coming up in regular order, was reported by the
Clerk.
At the request of Delegate Miley and by unanimous consent, the rule was suspended to
permit the offering and consideration of an amendment on third reading.
On motion of Delegate Miley, the bill was amended on page two, by striking out everything
after the enacting clause and inserting in lieu thereof the following:
"That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §61-13-1, §61-13-2, §61-13-3, §61-13-4, §61-13-5, §61-13-6, §61-13-7, §61-13-
8, §61-13-9, §61-13-10, §61-13-11, §61-13-12, §61-13-13, §61-13-14, §61-13-15, §61-13-16, §61-
13-17, §61-13-18, §61-13-19, §61-13-20,§61-13-21 and §61-13-22, all to read as follows:
ARTICLE 13. WEST VIRGINIA CRIMINAL AND CIVIL FORFEITURE ACT.
§61-13-1. Purpose and scope.
(a) The provisions of this article establish general forfeiture guidelines and procedures to be
followed in both civil and criminal cases in which forfeiture of property or restitution is sought for
the specified crimes and offenses set forth in subsection (c) of this section, when committed by adult
offenders, or their equivalent if committed by a juvenile offender.
(b) Forfeitures under this article shall be governed by all of the following purposes:
(1) To provide economic disincentives and remedies to deter and offset the economic effect
of offenses by seizing and forfeiting contraband, proceeds, and certain instrumentalities;
(2) To prioritize restitution for victims of offenses;
(3) To protect third parties from wrongful forfeiture of their property; and,
(4) To ensure that seizures and forfeitures of instrumentalities are proportionate to the offense
committed.
(c) Offenses for which property may be forfeited pursuant to provisions of this article include
any act or omission which, when committed by an adult, constitutes one or more of the following
misdemeanor or felony offenses:
(1) Any of the following crimes of fraud:
(A) As defined in section nine, article eight, chapter thirty-one-a of this code as against
banking institutions;
(B) As defined in section eighteen, article twenty, chapter forty-seven and section nineteen,
article twenty, chapter forty-seven of this code as against bingo;
(C) As defined in section eighteen, article twenty-one, chapter forty-seven and section
nineteen, article twenty-one, chapter forty-seven of this code as against charitable raffles;
(D) As defined in section twenty-six, article two, chapter fourteen as against claims against
the state;
(E) As defined in section four, article three-c of this chapter as against computer fraud;
(F) As defined in section twenty-four, article three of this chapter as against credit cards;
(G) As defined in section twenty-four, article three of this chapter as against disposing of
property to defraud creditors;
(H) As defined in section thirteen, article two-a, chapter seventeen-a of this code as against
motor vehicle records;
(I) As defined in section forty, article three of this chapter of this chapter as against obtaining
food or lodging;
(J) As defined in section twenty-four, article three of this chapter as against money, property
and services;
(K) As defined in section forty-four, article three of this chapter as against public utilities;
(L) As defined in sections twenty-four-a and twenty-four-b, article three of this chapter as
against telephone services;
(M) As defined in section fifty-seven, article three of this chapter as against bogus receipts
or universal product codes;
(2) Any crime against the elderly as 'elderly' is defined in section three-k, article five-p, chapter sixteen of this code;
(3) Any crime listed in section one, article eight-c of this chapter as against child
pornography,
(4) Any crime listed in section thirteen, article two of this chapter as against extortion;
(5) Any crime listed in section fourteen, article two of this chapter as against abduction,
kidnaping or concealing of a child;
(6) Any crime listed in section five, article eight of this chapter as against prostitution and
houses of ill fame and assignation;
(7) Any crime listed in section fifty-four, article three of this chapter as against identity theft;
and,
(8) Any crime listed in section twenty-four, article six of this chapter as against terrorist
activities.
(d) Offenses for which property may be forfeited pursuant to provisions of this article also
include any comparable equivalent act or omission committed by a juvenile, which, if committed
by an adult, would constitute any of the misdemeanor of felony offenses listed in subsection (c) of
this section.
(e) The provisions of this article apply to any act or omission that could be charged as a
felony or misdemeanor under the listed statutes, or an equivalent juvenile offense, whether or not
a formal criminal prosecution or delinquent child proceeding is pending at the time the forfeiture is
initiated.
(f) The seizure and forfeiture provisions of this article do not apply to:
(1) Any offenses in violation of article three-a, chapter sixty of this code, relating to sales by retail liquor licensees;
(2) Any offenses in violation of article four, chapter sixty of this code, relating to licenses
under the state control of alcoholic liquors;
(3) Any offenses in violation of article six, chapter sixty of this code, relating to
miscellaneous provisions under the state control of alcoholic liquors; or
(4) Any offenses in violation of chapter sixty-a, commonly known as the 'Uniform
Controlled Substances Act'.
(g) The provisions of this article do not apply to or amend the provisions of article seven,
chapter sixty-a of this code, commonly known as the 'West Virginia Contraband Forfeiture Act'.
§61-13-2. Definitions.
As used in this article:
(1) 'Aircraft' has the same meaning as described in section one, article two-a, chapter
twenty-nine of this code.
(2) 'Computers,' 'computer networks,' 'computer systems,' 'computer software,' and
'telecommunications device' have the same meanings as described in section three, article three-c,
chapter sixty-one of this chapter.
(3) 'Financial institution' means a bank, credit union, savings and loan association, or a
licensee or registrant as defined in section two, article one, chapter thirty-one-a of this code.
(4) 'Firearm' and 'deadly weapon' have the same meanings as in section two, article seven
of this chapter.
(5) 'Innocent person' includes any bona fide purchaser of property that is subject to forfeiture,
including any person who establishes a valid claim to or interest in the property in accordance with the provisions of section seven, chapter sixty-a of this code and any victim of an alleged offense.
(6) 'Instrumentality' means property otherwise lawful to possess that is used in or intended
to be used in an offense. An 'instrumentality' may include, but is not limited to, a firearm, a mobile
instrumentality, a computer, a computer network, a computer system, computer software, a
telecommunications device, money, and any other means of exchange.
(7) 'Law-enforcement officer' includes, but is not limited to, the definition contained in
section three, article ten, chapter fifteen of this code and the office of the prosecutor.
(8) 'Mobile instrumentality' means an instrumentality that is inherently mobile and used in
the routine transport of persons. 'Mobile instrumentality' includes, but is not limited to, any vehicle,
any watercraft, and any aircraft.
(9) 'Money' has the same meaning as in section one, article six, chapter forty-seven of this
code.
(10) 'Offense' means any act or omission that could be charged as a criminal offense or a
delinquent act, whether or not a formal criminal prosecution or delinquent child proceeding began
at the time the forfeiture is initiated.
(11) 'Proceeds' means both of the following:
(A) In cases involving unlawful goods, services, or activities, 'proceeds' means any property
derived directly or indirectly from an offense. 'Proceeds' may include, but is not limited to, money
or any other means of exchange. 'Proceeds' is not limited to the net gain or profit realized from the
offense.
(B) In cases involving lawful goods or services that are sold or provided in an unlawful
manner, 'proceeds' means the amount of money or other means of exchange acquired through the illegal transactions resulting in the forfeiture, less the direct costs lawfully incurred in providing the
goods or services. The lawful costs deduction does not include any part of the overhead expenses
of, or income taxes paid by, the entity providing the goods or services. The alleged offender or
delinquent child has the burden to prove that any costs are lawfully incurred.
(12) 'Property' means 'property' as defined in section ten, article two, chapter two of this
code and any benefit, privilege, claim, position, interest in an enterprise, or right derived, directly
or indirectly, from the offense.
(13) 'Property subject to forfeiture' includes contraband and proceeds and may include
instrumentalities as provided in this article.
(14) 'Prosecutor' means any duly elected or appointed prosecutor or special prosecutor.
(15) 'Vehicle' has the same meaning as in section four, article one, chapter seventeen and
section one, article one, chapter seventeen-b of this code.
(16) 'Watercraft' means any motorized or nonmotorized vessel.
§61-13-3. Property subject to forfeiture; exemptions; burden of proof.
(a) The following property is subject to forfeiture to the state or a political subdivision
pursuant to this article:
(1) Contraband involved in any offense set forth in subsections (c) and (d), section one of this
article;
(2) Proceeds derived from or acquired through the commission of any offense set forth in
subsections (c) and (d), section one of this article;
(3) An instrumentality that is used in or intended to be used in the commission or facilitation
of any offense listed in subsections (c) and (d) of section one of this article: Provided, That the use or intended use is consistent with an attempt to commit, complicity in committing or a conspiracy
to commit the described offense.
(b) In determining whether an alleged instrumentality was used in or was intended to be used
in the commission or facilitation of an offense or an attempt, complicity, or conspiracy to commit
an offense in a manner sufficient to warrant its forfeiture, the trier of fact shall consider the following
factors the trier of fact determines are relevant:
(1) Whether the offense could not have been committed or attempted but for the presence of
the instrumentality;
(2) Whether the primary purpose in using the instrumentality was to commit or attempt to
commit the offense;
(3) The extent to which the instrumentality furthered the commission of, or attempt to
commit, the offense.
(c) All property, including all interests in such property, described in a statute providing for
its forfeiture is subject to forfeiture. However:
(1) No vehicle used by any person as a common carrier in the transaction of business as a
common carrier may be forfeited under the provisions of this article unless it appears that the owner
or other person in charge of the vehicle was a consenting party or privy to the act or omission giving
rise to the forfeiture or know or had reason to know of it.
(2) No vehicle may be forfeited under the provisions of this article for any act or omission
established by the owner to have been committed or omitted by a person other than the owner while
the vehicle was unlawfully in the possession of a person other than the owner in violation of the
criminal laws of this state or of the United States.
(3) No owner's or interest holder's interest may be forfeited under this article if the owner
or interest establishes all of the follwing:
(A) He or she acquired the interest before or during the conduct giving rise to forfeiture;
(B) He or she is a bonafide purchaser for value not knowingly taking part in an illegal
transaction; and,
(C) Her or she at the time of the purchase and at all times after the purchase and before the
filing of a lien notice or the provisions of notice of pending forfeiture or the filing and notice of a
civil or criminal proceeding relating to the property, whichever is earlier, was reasonably without
notice of the act or notice of the act or omission giving rise to the forfeiture and was reasonably
without cause to believe that the property was subject to forfeiture.
(4) No owner's or interest holder's interest may be forfeited under this article if the owner
or interest holder establishes all of the following:
(A) He or she acquired the interest before or during the conduct giving rise to forfeiture; and,
(B) He or she did not know and could not reasonably have known of the act or omission
which gave rise to the forfeiture, or that it was likely to occur.
(e) In any forfeiture action under the provisions of sections eleven, twelve or thirteen of this
article, if a property owner or third party claims lawful interest in the subject property alleged to be
proceeds, the state or political subdivision has provisionsal title and a right to hold the property if
it proves both of the following by a preponderance of the evidence:
(1) The interest in the property was acquired by the alleged offender or delinquent child
during the commission of the offense or within a reasonable time after that period; and,
(2) There is no likely source for the interest in the property other than as proceeds derived from or acquired through the commission of the offense.
(e) If the alleged offender or delinquent child claims that the property was acquired in whole
or in part with other lawful assets, the alleged offender or delinquent child shall have the burden to
prove by a proponderance of the evidence the amount of any direct costs lawfully incurred.
§61-13-4. Provisional title to property subject to forfeiture.
The state or political subdivision acquires provisional title to property subject to forfeiture
under this article upon a person's commission of an offense giving rise to forfeiture, subject to third
party claims and a final adjudication under the provisions of this article. Provisional title authorizes
the state or political subdivision to seize and hold the property, and to act to protect the property
under this section before any proceeding under this article. Title to the property vests with the state
or political subdivision when the trier of fact renders a final forfeiture verdict or order under the
provisions of this article, but that title is subject to third party claims adjudicated under those
sections.
§61-13-5.
Seizure of property
.
(a) Property subject to forfeiture under this article may be seized for forfeiture by a law
enforcement officer:
(1) On process issued pursuant to the rules of civil procedure or the provisions of this article
including a seizure warrant.
(2) By making a seizure for forfeiture on property seized on process issued pursuant to law.
(3) By making a seizure for forfeiture without court process if any of the following is true:
(A) The seizure for forfeiture is of property seized incident to an arrest or search.
(B) The property subject to seizure for forfeiture has been the subject of a prior judgment
in favor of this state or any other state or the federal government in a forfeiture proceeding.
(C) The law enforcement officer has probable cause to believe that the property is subject
to forfeiture.
(b) Property subject to forfeiture under this article may be seized for forfeiture by placing
the property under constructive seizure. Constructive seizure may be made by posting notice of
seizure for forfeiture on the property or by filing notice of seizure for forfeiture or notice of pending
forfeiture in any appropriate public record relating to the property.
(c) The court shall determine probable cause for seizure before real property may be seized
for forfeiture, unless the seizure is pursuant to a constructive seizure or the filing of a lis
pendens. The court may make its determination ex parte if the state demonstrates that notice and an
opportunity to appear would create a risk of harm to the public safety or welfare, including the risk
of physical injury or the likelihood of property damage or financial loss.
(d) The court shall determine probable cause for seizure before property may be seized for
forfeiture as a substitute asset pursuant to subsection (a) of section thirteen of this article, unless the
seizure is pursuant to a constructive seizure or the filing of a lien or lis pendens. The court may issue
a seizure warrant for such property if it determines that there is probable cause to believe that the
property is subject to forfeiture and is not available for seizure for forfeiture for any reason described
in subsection (a), section thirteen of this article. The determinations shall be made ex parte unless
real property is to be seized and subsection (c) of this section requires notice and an opportunity to
appear.
(e) In establishing a preponderance of the evidence and in determining probable cause for
seizure and for forfeiture, a rebuttable presumption exists that the property of any person is subject
to forfeiture if the state establishes all of the following by the standard of proof applicable to that
proceeding:
(1) Conduct giving rise to forfeiture occurred.
(2) The person acquired the property during the period of the conduct giving rise to forfeiture
or within a reasonable time after that period.
(3) There is no likely source for the property other than the conduct giving rise to forfeiture.
(f) In establishing a preponderance of the evidence and in determining probable cause for
seizure and for forfeiture, the fact that money or any negotiable instrument was found in proximity
to contraband or to instrumentalities of an offense gives rise to an inference that the money or
instrument was the proceeds of contraband or was used or intended to be used to facilitate
commission of the offense.
61-13-6.
Powers and duties of law enforcement officers and agencies.
(a) In the event of a seizure for forfeiture under section five of this article, the property is not
subject to replevin, conveyance, sequestration or attachment but is deemed to be in the custody of
the law enforcement agency making the seizure for forfeiture.The seizing agency or the attorney for
the state may authorize the release of the seizure for forfeiture of the property if forfeiture or
retention is unnecessary, may transfer the property to any other state or federal agency or may
transfer the action to another attorney for the state by discontinuing forfeiture proceedings in favor
of forfeiture proceedings initiated by the other agency or attorney. An action pursuant to this article shall be consolidated with any other action or proceeding pursuant to this article relating to the same
property on motion by the attorney for the state in either action.
(b) If property is seized for forfeiture under section five of this article, pending forfeiture and
final disposition, the seizing agency may do any of the following:
(1) Remove the property to a storage area for safekeeping or, if the property is a negotiable
instrument or money, deposit it in an interest bearing account.
(2) Remove the property to a place designated by the court.
(3) Provide for another custodian or agency to take custody of the property and remove it
to an appropriate location within the jurisdiction of the court.
(c) As soon as practicable after seizure for forfeiture, the seizing agency shall conduct an
inventory and estimate the value of the property seized. Within twenty days the seizing agency or
the attorney for the state shall make reasonable efforts to provide notice of seizure for forfeiture to
all persons known to have an interest in the seized property.
(d) A person who acts in good faith and in a reasonable manner to comply with an order of
the court or a request of a law enforcement officer is not liable to any person for acts done in
compliance with the order or request.
(e) A possessory lien of a person from whose possession property is seized is not affected
by the seizure.
(f) In the event of a seizure for forfeiture under section five of this article, the seizing agency
shall send to an attorney for the state a written request for forfeiture within twenty days, which shall
include a statement of facts and circumstances of the seizure including the names of witnesses then known, the appraised or estimated value of the property and a summary of the facts relied on for
forfeiture.
(g) An owner of property seized for forfeiture may obtain the release of the seized property
by posting with the attorney for the state a surety bond or cash in an amount equal to the full fair
market value of the property as determined by the attorney for the state. The state may refuse to
release the property if any of the following applies:
(1) The bond or cash tendered is inadequate.
(2) The property is retained as contraband or evidence.
(3) The property is particularly altered or designed for use in conduct giving rise to
forfeiture.
(h) If an owner of property posts a surety bond or cash and the property is forfeited the court
shall forfeit the surety bond or cash in lieu of the property. 13-4306
§61-13-7.
Notice of pending forfeiture
.
Whenever notice of pending forfeiture is required under this article it shall be given or
provided in one of the following ways and is effective at the time of personal service, publication
or the mailing of written notice, whichever is earlier:
(a) If the owner's or interest holder's name and current address are known by either:
(1) Personal service.
(2) Mailing a copy of the notice by certified mail to the address.
(b) If the owner's or interest holder's interest is required by law to be on record with a county
recorder's office, the secretary of state, the department of transportation motor vehicle division, the
game and fish department, or another state or federal licensing agency in order to perfect an interest in the property, but his current address is not known, by mailing a copy of the notice by certified mail
to any address on the record.
(c) If the owner's or interest holder's address is not known, and is not on record as provided
in paragraph (b) of this section, or if his interest is not known, by publication in one issue of a
newspaper of general circulation in the county in which the seizure occurs. 13-4307
§61-13-813-430813-4308.
Commencement of proceedings
.
(a) The attorney for the state shall determine whether it is probable that the property is
subject to forfeiture and, if so, may cause the initiation of uncontested or judicial proceedings against
the property. If, on inquiry and examination, the attorney determines that the proceedings probably
cannot be sustained or that justice does not require the institution of such proceedings, he shall notify
the seizing agency and immediately authorize the release of the seizure for forfeiture on the property
or on any specified interest in it.
(b) If the state fails to initiate forfeiture proceedings against property seized for forfeiture
by notice of pending forfeiture within sixty days after its seizure for forfeiture, or fails to pursue
forfeiture of such property on which a timely claim has been properly filed by filing a complaint,
information or indictment pursuant to section eleven or section twelve of this article within sixty
days after notice of pending forfeiture or, if uncontested forfeiture has been made available, within
sixty days after a declaration of forfeiture, whichever is later, such property shall be released from
its seizure for forfeiture on the request of an owner or interest holder, pending further proceedings
pursuant to this article, which shall be commenced within two years after actual discovery of the last
act giving rise to forfeiture.
(c) If the property sought to be forfeited is real property, including fixtures, the attorney for
the state may file a lis pendens or a notice of pending forfeiture with respect to the property with the
county recorder of the county in which the property is located, without a filing fee or other charge. 13-4308
§61-13-9. Uncontested forfeiture.
If a forfeiture is authorized by law, the attorney for the state may make uncontested civil
forfeiture available to owners of and interest holders in personal property in the following
manner:
(a) If the attorney for the state in his discretion makes uncontested forfeiture available, he
shall provide notice of pending forfeiture by giving notice within thirty days after seizure for
forfeiture as provided in section seven of this article to all persons known to have an interest who
have not previously received the notice.
(b) An owner of or interest holder in the property may elect to file either a claim with the
court within thirty days after the notice or a petition for remission or mitigation of forfeiture with
the attorney for the state within thirty days after the notice and not after a complaint has been
filed, but may not file both. The claim or petition shall comply with the requirements for claims
in subsections (e) and (f) of section eleven of this article.
(c) The following apply if one or more owners or interest holders timely file a petition
for remission or mitigation:
(1) The attorney for the state shall inquire into whether the property is subject to
forfeiture and the facts and circumstances surrounding petitions for remission or mitigation of
forfeiture.
(2) The attorney for the state shall provide the seizing agency and the petitioner with a
written declaration of forfeiture, remission or mitigation of any or all interest in the property in
response to each petition within ninety days after the effective date of the notice of pending
forfeiture unless one or more petitioners request an extension of time in writing or unless the
circumstances of the case require additional time, in which case the attorney for the state shall
notify the petitioner in writing and with specificity within the ninety day period that the
circumstances of the case require additional time and further notify the petitioner of the expected
decision date. In no event shall the mailing of the declaration be more than one hundred twenty
days after the date of the state's notice of pending forfeiture.
(3) An owner or interest holder in any property declared forfeited may file a claim as
described in subsections (e) and (f) of section eleven in this article, in the circuit court in the
county in which the uncontested forfeiture was declared within thirty days after the mailing of the
declaration of forfeiture.
(4) If a declaration of forfeiture pursuant to this section is followed by a timely claim, or
at any other time, the attorney for the state may elect to proceed as provided for judicial
forfeitures.
(5) If no petitioner files a claim in the court within thirty days after the mailing of the
declaration of forfeiture, the declaration becomes final and the attorney for the state shall proceed
as provided in sections fourteen and fifteeen of this article.
(d) If no petitions for remission or mitigation or claims are timely filed, the attorney for
the state shall proceed as provided in sections fourteen and fifteen of this article.
(e) If one or more petitions for remission or mitigation and one or more claims are timely
filed, no complaint for forfeiture need be filed by the state until sixty days after an uncontested
declaration of forfeiture.
(f) If a judicial forfeiture proceeding follows a notice of pending forfeiture making
uncontested civil forfeiture available:
(1) No duplicate or repetitive notice or claim is required. The judicial proceedings shall
adjudicate all timely filed claims. If a claim has been timely filed pursuant to subsections (b) or
(c) of this section it shall be determined in a judicial forfeiture proceeding after the
commencement of such a proceeding pursuant to subsection (a), section eleven or subsection (a),
section twelve of this article.
(2) The declarations of forfeiture, remission or mitigation responsive to all petitioners
who subsequently filed claims are void and shall be regarded as rejected offers to compromise. 13-4309
§61-13-10.
Judicial forfeiture proceedings; general.
(a) In any proceeding pursuant to this article, the court, on application of the state, may
enter any restraining order or injunction, require the execution of satisfactory performance bonds,
create receiverships, appoint conservators, appraisers, accountants or trustees or take any other
action to seize, secure, maintain or preserve the availability of property subject to forfeiture under
this article, including a warrant for its seizure, whether prior or subsequent to the filing of a
notice of pending forfeiture, complaint, indictment or information.
(b) If property is seized for forfeiture without a prior judicial determination of probable
cause, an order of forfeiture or a hearing pursuant to subsection (d), section twelve of this article,
the court, on an application filed by an owner of or interest holder in the property within fifteen days after notice of its seizure for forfeiture or actual knowledge of it, whichever is earlier, and
complying with the requirements for claims in subsections (e) and (f) of section eleven of this
article, may issue an order to show cause to the seizing agency for a hearing on the sole issue of
whether probable cause for forfeiture of the property then exists. Notice of the order to show
cause hearing must be served upon the attorney for the state at least five working days before the
hearing is held. If the court finds that no probable cause for forfeiture of the property then exists
or if the state elects not to contest the issue, the property seized for forfeiture from the applicant
shall be released to the custody of the applicant pending the outcome of a judicial proceeding
pursuant to this article. If the court finds that probable cause for the forfeiture of the property
then exists, the court shall not order the property released, except as provided in subsection (g),
section six of this article.
(c) A defendant convicted in any criminal proceeding shall be precluded from
subsequently denying the essential allegations of the criminal offense of which he was convicted
in any proceeding pursuant to this article. For the purposes of this article, a conviction may
result from a verdict or plea including a no contest plea.
(d) In any judicial forfeiture hearing, determination or other proceeding pursuant to this
article, the applicant, petitioner or claimant must establish by a preponderance of the evidence
that he is an owner of or interest holder in the property seized for forfeiture before other evidence
is taken. The burden of proving the standing of the claimant and the existence of the exemption
is on the claimant or party raising the claim, and it is not necessary to negate the standing of any
claimant or the existence of any exemption in any notice, application, complaint, information or
indictment.
(e) In hearings and determinations pursuant to this article:
(1) The law of evidence relating to civil actions applies equally to all parties, including
the state, an applicant, a petitioner, a claimant and a defendant, on all issues required to be
established by a preponderance of the evidence.
(2) The court shall receive and consider, in making any determination of probable cause
or reasonable cause, all evidence and information that would be permissible in determining
probable cause at a preliminary hearing, at a grand jury or by a magistrate pursuant to section
thirteen of this article, together with inferences from the evidence and information.
(3) No evidence may be suppressed in any hearing pursuant to this article on the ground
that its acquisition by search or seizure violated constitutional protections applicable in criminal
cases relating to unreasonable searches or seizures.
(f) All property, including all interests in such property, declared forfeited under this title
vests in this state on the commission of the act or omission giving rise to forfeiture under this
article together with the proceeds of the property after such time. Any such property or proceeds
subsequently transferred to any person are subject to forfeiture and thereafter shall be ordered
forfeited unless the transferee claims and establishes in a hearing pursuant to this article the
showings set out in section three of this article.
(g) On the motion of a party and after notice to any persons who are known to have an
interest in the property and an opportunity to be heard, the court may order property that has been
seized for forfeiture sold, leased, rented or operated to satisfy an interest of any interest holder
who has timely filed a proper claim or to preserve the interests of any party. The court may order
a sale or any other disposition of the property if the property may perish, waste, be foreclosed on or otherwise be significantly reduced in value or if the expenses of maintaining the property are
or will become greater than its fair market value. If the court orders a sale, the court shall
designate a third party or state property manager to dispose of the property by public sale or other
commercially reasonable method and shall distribute the proceeds in the following order of
priority:
(1) Payment of reasonable expenses incurred in connection with the sale.
(2) Satisfaction of exempt interests in the order of their priority.
(3) Preservation of the balance, if any, in the actual or constructive custody of the court
in an interest bearing account, subject to further proceedings under this article.
(h) If the property is disposed of pursuant to subsection (g) of this section, a successful
claimant may apply to the court for actual monetary damages suffered, if any, as a result of the
disposal of the property, but the state, a political subdivision of the state, or an officer, employee
or agent of any of them shall not in any event be liable under this article for incidental or
consequential damages or for damages either:
(1) That could have been avoided if the claimant had made full and immediate disclosure
to the attorney for the state of facts or evidence known or available to the claimant.
(2) In excess of the fair market value of the property seized for forfeiture at the time of
its seizure plus interest from the time of its seizure for forfeiture.
(i) If an indictment or information is filed alleging the same conduct as the conduct
giving rise to forfeiture in a civil forfeiture proceeding, the court in the civil proceeding may stay
civil discovery against the criminal defendant and against the state in the civil proceeding until
the defendant's criminal trial is completed. Before staying civil discovery, the court shall make adequate provision to prevent any loss or expense to any victim or party resulting from the delay,
including loss or expense due to maintenance, management, insurance, storage or preservation of
the availability of the property or due to depreciation in the value of the property.
(j) No person claiming to be an owner of or interest holder in property seized for
forfeiture under this article may commence or maintain any action against the state concerning
the validity of the alleged interest other than as provided in this article. 13-4310
§61-13-11. Judicial in rem forfeiture proceedings.
(a) If a forfeiture is authorized by law, it shall be ordered by a court on an action in rem
brought by the state pursuant to a notice of pending forfeiture or a verified complaint for
forfeiture. The state may serve the complaint in the manner provided by section seven of this
article or by the West Virginia rules of civil procedure.
(b) A civil in rem action may be brought by the state in addition to or in lieu of the civil
and criminal in personam forfeiture procedures set forth in sections eleven, twelve and thirteen of
this article or the uncontested civil forfeiture procedures set forth in section nine of this
article. Judicial in rem forfeiture proceedings are in the nature of an action in rem and are
governed by the West Virginia rules of civil procedure unless a different procedure is provided
by law.
(c) On the filing of a civil in rem action by the state circuit court the clerk of the court in
which the action is filed shall provide, and the attorney for the state may provide, the notice of
pending forfeiture required by section seven of this article unless the files of the clerk of the court
reflect that such notice has previously been made.
(d) An owner of or interest holder in the property may file a claim against the property, within thirty days after the notice, for a hearing to adjudicate the validity of his claimed interest
in the property. The hearing shall be held by the court without a jury.
(e) The claim shall be signed by the claimant under penalty of perjury and shall set forth
all of the following:
(1) The caption of the proceeding as set forth on the notice of pending forfeiture or
complaint and the name of the claimant.
(2) The address at which the claimant will accept future mailings from the court or
attorney for the state.
(3) The nature and extent of the claimant's interest in the property.
(4) The date, the identity of the transferor and the circumstances of the claimant's
acquisition of the interest in the property.
(5) The specific provisions of this article relied on in asserting that the property is not
subject to forfeiture.
(6) All facts supporting each such assertion.
(7) Any additional facts supporting the claimant's claim.
(8) The precise relief sought.
(f) Copies of the claim shall be mailed to the seizing agency and to the attorney for the
state. No extension of time for the filing of a claim may be granted.
(g) Within twenty days after service of the complaint, the claimant shall file and serve
the answer to the complaint and the answers to interrogatories and requests for admission if any
were served with the complaint. The answer shall be signed by the owner or interest holder
under penalty of perjury, shall comply with the West Virginia rules of civil procedure relating to answers and shall comply with all of the requirements for claims. If no proper answer is timely
filed, the attorney for the state shall proceed as provided in sections fourteen and fifteen with ten
days' notice to any person who has timely filed a claim that has not been stricken by the court.
(h) At the time of filing its pleadings or at any other time not less than thirty days before
the hearing, the state and any claimant who has timely answered the complaint may serve
discovery requests on any other party, the answers or response to which shall be due in twenty
days, and may take the deposition of any person at any time after the expiration of fifteen days
after the filing and service of the complaint. Any party may move for summary judgment at any
time after an answer or responsive pleading is served and not less than thirty days before the
hearing. The state, as the party defending against the claim, may make offers of judgment at any
time more than ten days before the hearing begins.
(i) An injured person may submit a request for compensation from forfeited property to
the court at any time before the earlier of the entry of a final judgment or an application for an
order of the forfeiture of the property, or if a hearing pursuant to subsections (k), (l) and (m) of
this section is held, not less than thirty days before the hearing. The request shall be signed by
the requestor under penalty of perjury and shall set forth all of the following:
(1) The caption of the proceeding as set forth on the notice of pending forfeiture or
complaint and the name of the requestor.
(2) The address at which the requestor will accept future mailings from the court or
parties to the action.
(3) The property subject to forfeiture from which the requestor seeks compensation.
(4) The nature of the economic loss sustained by the requestor.
(5) All facts supporting each such assertion.
(6) Any additional facts supporting the request.
(7) The amount of economic loss for which the requestor seeks compensation.
(j) If a proper request for compensation from forfeited property is timely filed, the court
shall hold a hearing to establish whether there is a factual basis for the request. The requestor has
the burden of establishing by a preponderance of the evidence that the requestor is an injured
person who sustained economic loss.
(k) The hearing on the claim, to the extent practicable and consistent with the interest of
justice, shall be held sixty days after all parties have complied with the disclosure required by
rule 26.1 of the West Virginia rules of civil procedure. The court may consolidate the hearing on
the claim with a hearing on any other claim concerning the same property.
(l) At the hearing, the claimant may testify, present evidence and witnesses on the
claimant's own behalf and cross-examine witnesses who appear at the hearing. The state may
present evidence and witnesses and cross-examine witnesses who appear at the hearing.
(m) At the hearing, the state has the burden of establishing by a preponderance of the
evidence that the property is subject to forfeiture. Any claimant who has previously established
by a preponderance of the evidence that the claimant is an owner of or interest holder in the
property has the burden of establishing by a preponderance of the evidence that the claimant's
interest in the property is exempt from forfeiture.
(n) In accordance with its findings at the hearing:
(1) The court shall order an interest in property returned or conveyed to a claimant, if
any, who has established by a preponderance of the evidence that the claimant is an owner of or interest holder in the property if either of the following applies:
(A) The state has failed to establish by a preponderance of the evidence that the interest
is subject to forfeiture.
(B) The claimant has established by a preponderance of the evidence that the interest is
exempt from forfeiture.
(2) The court shall order all other property, including all interests in the property,
forfeited to this state and proceed pursuant to sections fourteen and fifteen of this article.
(3) If the court finds that a requestor is an injured person the court shall determine the
amount of the injured person's economic loss caused by the conduct giving rise to the forfeiture
of the designated property and shall require the following:
(A) If the designated property is not contraband and is not altered or designed for use in
conduct giving rise to forfeiture, the attorney for the state shall sell the property as provided in
subsections (a) and (b) of section fifteen, and shall apply the resulting balance to compensate the
injured person's economic loss in the amount found by the court.
(B) If the balance is insufficient to compensate the economic loss of all injured persons
the attorney for the state shall distribute the balance among the injured persons according to a
method determined by the court.
(C) After compensation of all injured persons, the attorney for the state shall transmit ten
per cent of the remaining balance, if any, as set forth in sections nineteen and twenty of this
article.
§61-13-12. Judicial in personam proceedings.
(a) If a forfeiture is authorized by law, it shall be ordered by a court on proceedings by the state in an in personam civil or criminal action pursuant to section thirteen of this article or any other
law providing for a forfeiture.
(b) Any complaint, information or indictment alleging or charging one or more offenses
included in section one, or any other offense giving rise to forfeiture under this article, shall set
forth with reasonable particularity property that the state seeks to forfeit pursuant to this section
in that action, if any. The court shall allow the allegation that particular new or different or
differently described property is subject to forfeiture in an in personam criminal or civil case to
be made at any time prior to the date the case is actually tried unless the allegation is filed fewer
than twenty days before the case is actually tried, and the court finds on the record that the
defendant was in fact prejudiced by the untimely filing and states reasons for these findings,
provided that when the allegation is filed, the state must make available to the defendant a copy
of any material information concerning the allegation.
(c) In any proceeding pursuant to this section, the court, on application of the state, may
enter any order authorized by subsection (a), section ten of this article, or take any other action to
seize, secure, maintain or preserve the availability of property subject to forfeiture under this
article, including a warrant for its seizure, whether before or after the filing of a complaint,
indictment or information.
(d) Notwithstanding subsection (e) of this section, a temporary restraining order under
this section may be entered on application of the state without notice or an opportunity for a
hearing if the state demonstrates both that:
(1) There is probable cause to believe that the property with respect to which the order is
sought would, in the event of final judgment or conviction, be subject to forfeiture under this article.
(2) Provision of notice will jeopardize the availability of the property for forfeiture. A
temporary restraining order expires within ten days after the date on which it is entered unless the
party against whom it is entered consents to an extension for a longer period or unless after
commencing a hearing the court enters or is considering a preliminary injunction.
(e) Notice of the entry of the restraining order and an opportunity for a hearing shall be
afforded to persons known to have an interest in the property, whether or not a temporary
restraining order is entered without notice. The hearing, however, is limited to the issues of
whether both:
(1) There is a probability that the state will prevail on the issue of forfeiture and that
failure to enter the order will result in the property being destroyed, conveyed, encumbered or
further encumbered, removed from the jurisdiction of the court, concealed or otherwise made
unavailable for forfeiture.
(2) The need to preserve the availability of property through the entry of the requested
order outweighs the hardship on any owner, interest holder or defendant against whom the order
is to be entered.
(f) A hearing requested by any owner or interest holder concerning an order entered
under this section shall be held at the earliest possible time and before the expiration of a
temporary order.
(g) On a determination of liability or the conviction of a person for conduct giving rise to
forfeiture under this article, the court shall enter a judgment of forfeiture of the property
described in the forfeiture statute alleged and set out in the complaint, information or indictment, as amended, and shall also authorize the county attorney or attorney general, their agents or any
peace officer to seize all property ordered forfeited that was not previously seized or is not then
under seizure. Following the entry of an order declaring the property forfeited, the court, on
application of the state, may enter any order authorized by subsection (a), section ten of this
article or take any other action to protect the interest of this state or a political subdivision in the
property ordered forfeited. The filing of the order of forfeiture in the appropriate public records
perfects the interest of the state in the property described in the order as of the earlier of the date
of the act or omission giving rise to forfeiture or the date that a notice of seizure for forfeiture or
notice of pending forfeiture or lien was first filed in the records, which entitles the state to all
rights of a secured party as to that property in addition to any other rights or remedies of the state
in relation to the property. Any income accruing to, or derived from, an enterprise or any interest
in an enterprise or other property interest that is forfeited under this article is also forfeited from
the time of the conduct giving rise to forfeiture. It may be used pending procedures subsequent
to a verdict or finding of liability to offset ordinary and necessary expenses of the enterprise or
property as required by law or that are necessary to protect the interests of this state or a political
subdivision.
(h) Procedures subsequent to the verdict or finding of liability and order of forfeiture
shall be as follows:
(1) Following the entry of an order of forfeiture under this subsection the clerk of the
court shall, and the attorney for the state may, give notice of pending forfeiture to all owners and
interest holders who have not previously been given notice, if any, in the manner provided in
section seven of this article.
(2) An owner of or interest holder in property that has been ordered forfeited pursuant to
such action whose claim is not precluded may file a claim as described in subsections (e) and (f),
section eleven of this article in the court for a hearing to adjudicate the validity of his claimed
interest in the property within thirty days after initial notice of pending forfeiture or after notice
under paragraph one of this subsection, whichever is earlier.
(3) The hearing on the claim, to the extent practicable and consistent with the interest of
justice, shall be held within sixty days after the order of forfeiture. The court may consolidate the
hearing on the claim with a hearing on any other claim filed by a person other than a party or
defendant in the underlying action and concerning the same property.
(4) The hearing shall be held by the court without a jury and conducted in the manner
provided for in rem judicial forfeiture actions including the provisions of section eleven,
subsections (j) and (k). In addition to testimony and evidence presented at the hearing, the court
shall consider the relevant portions of the record of the underlying civil or criminal action that
resulted in the order of forfeiture.
(5) In accordance with its findings at the hearing, the court may amend the order of
forfeiture if it determines that any claimant has established by a preponderance of the evidence
that the claimant is an owner of or interest holder in the property if either of the following
applies:
(A) The state has failed to establish by a preponderance of the evidence that the interest
is subject to forfeiture under this article.
(B) The claimant has established by a preponderance of the evidence that the interest is
exempt from forfeiture under section three of this article.
(i) In order to facilitate the identification or location of property declared forfeited and to
facilitate the disposition of filed or subsequent claims pursuant to subsection (h)(2) of this
section, the court, on application of the state, may order that the testimony of any witness relating
to the property forfeited or alleged to be subject to forfeiture be taken by deposition and that any
designated book, paper, document, record, recording, electronic or otherwise, or other material
which is not privileged be produced at the same time and place and in the same manner as that
provided for the taking of depositions under the rules of civil procedure.
§61-13-13. Supplemental remedies.
(a) The court shall order the forfeiture of any other property of a claimant or an in
personam civil or criminal defendant up to the value of the claimant's or defendant's property that
the court finds is subject to forfeiture if any of the following circumstances apply to the property:
(1) It cannot be located.
(2) It has been transferred or conveyed to, sold to or deposited with a third party.
(3) It has been placed beyond the jurisdiction of the court.
(4) It has been substantially diminished in value by any act or omission of the defendant.
(5) It has been commingled with other property which cannot be divided without
difficulty.
(6) It is subject to any interest that is exempt from forfeiture.
(b) In addition to any other remedy provided for by law, if property subject to forfeiture
is conveyed, alienated, encumbered, disposed of, received, removed from the jurisdiction of the
court, concealed or otherwise rendered unavailable for forfeiture after the filing of a lien notice or
provision of notice of pending forfeiture or after the filing and notice of a civil proceeding or criminal proceeding alleging forfeiture under this article, whichever is earlier, the state may
institute an action in circuit court against the person named in the lien or notice of pending
forfeiture or the defendant in the civil proceeding or criminal proceeding, and the court shall
enter final judgment against the person named in the lien or notice of pending forfeiture or the
defendant in the civil proceeding or criminal proceeding in an amount equal to the fair market
value of the property, together with reasonable investigative expenses and attorney fees. If a civil
proceeding under this article is pending, the action shall be filed only in the court where the civil
proceeding is pending.
(c) This section does not limit the right of the state to obtain any order or injunction,
receivership, writ, attachment, garnishment or other remedy authorized under this article or
appropriate to protect the interests of the state or available under other applicable law.
§61-13-14. Seizure of forfeited or other property - disposition.
(a) If no petitions for remission or mitigation or claims are timely filed or if no petitioner
files a claim in the court within thirty days after the mailing of a declaration of forfeiture, the
attorney for the state shall apply to the court for an order of forfeiture and allocation of forfeited
property pursuant to section fifteen of this article. On the state's written application showing
jurisdiction, notice and facts sufficient to demonstrate probable cause for forfeiture, the court
shall order the property forfeited to the state.
(b) After the court's disposition of all claims timely filed under this article, the state has
clear title to the forfeited property and the court shall so order. Title to the forfeited property and
its proceeds is deemed to have vested in the state on the commission of the act or omission
giving rise to the forfeiture under this article.
(c) If, in his discretion, the attorney for the state has entered into a stipulation with an
interest holder that the interest holder has an interest that is exempted from forfeiture, the court,
on application of the attorney for the state, may release or convey forfeited personal property to
the interest holder if all of the following are true:
(1) The interest holder has an interest which was acquired in the regular course of
business as a financial institution.
(2) The amount of the interest holder's encumbrance is readily determinable and it has
been reasonably established by proof made available by the attorney for the state to the court.
(3) The encumbrance held by the interest holder seeking possession is the only interest
exempted from forfeiture and the order forfeiting the property to the state transferred all of the
rights of the owner prior to forfeiture, including rights to redemption, to the state.
(4) After the court's release or conveyance, the interest holder shall dispose of the
property by a commercially reasonable public sale, and within ten days of disposition shall tender
to the state the amount received at disposition less the amount of the interest holder's
encumbrance and reasonable expense incurred by the interest holder in connection with the sale
or disposal.
(d) On order of the court forfeiting the subject property, the attorney for the state may
transfer good and sufficient title to any subsequent purchaser or transferee, and the title shall be
recognized by all courts, by this state and by all departments and agencies of this state and any
political subdivision.
(e) On entry of judgment for a claimant or claimants in any proceeding to forfeit property
under this article such property or interest in property shall be returned or conveyed immediately to the claimant or claimants designated by the court. If it appears that there was reasonable cause
for the seizure for forfeiture or for the filing of the notice of pending forfeiture, complaint,
information or indictment, the court shall cause a finding to be entered, and the claimant is not, in
such case, entitled to costs or damages, nor is the person or seizing agency that made the seizure,
nor is the attorney for the state liable to suit or judgment on account of such seizure, suit or
prosecution.
(f) The court shall order any claimant who fails to establish that his entire interest is
exempt from forfeiture under section three of this article to pay the costs of any claimant who
establishes that his entire interest is exempt from forfeiture under section three of this article and
the state's costs and expenses of the investigation and prosecution of the matter, including
reasonable attorney fees.
§61-13-15. Seizure of forfeited or other property - disposition.
(a) Upon the entry of a forfeiture order under the provisions of sections five, nine, eleven,
twelve or thirteen of this article, if necessary, the court shall order an appropriate
law-enforcement officer to seize the forfeited property on conditions that the court considers
proper. If necessary, the court shall order the person in possession of the property to deliver the
property by a specific date to the law-enforcement agency involved in the initial seizure of the
property. The court shall deliver the order by personal service or certified mail.
(b) With respect to property that is the subject of a forfeiture order issued under the
provisions of section five, nine, eleven, twelve or thirteen of this article, the court that issued the
order, upon petition of the prosecutor who prosecuted the underlying offense or act or brought
the civil forfeiture action, may do any of the following:
(1) Enter any appropriate restraining orders or injunctions; require execution of
satisfactory performance bonds; appoint receivers, conservators, appraisers, accountants, or
trustees; or take any other action necessary to safeguard and maintain the forfeited property;
(2) Authorize the payment of rewards to persons who provide information resulting in
forfeiture of the property under this article;
(3) Authorize the prosecutor to settle claims;
(4) Restore forfeited property to victims and grant petitions for mitigation or remission of
forfeiture;
(5) Authorize a stay of the forfeiture order pending appeal or resolution of any claim to
the property if requested by a person other than the defendant or a person acting in concert with,
or on behalf of, the defendant.
(c) To facilitate the identification and location of property that is the subject of a
forfeiture order and to facilitate the disposition of petitions for remission or mitigation issued
under this section, after the issuance of a forfeiture order and upon application by the prosecutor,
the court, consistent with the West Virginia Rules of Civil Procedure, may order that the
testimony of any witness relating to the forfeited property be taken by deposition and that any
designated material that is not privileged be produced at the same time and place as the
testimony.
(d) The court shall order forfeiture of any other property of the offender or delinquent
child up to the value of the unreachable property if any of the following describe any property
subject to a forfeiture order under the provisions of section eleven, twelve or thirteen of this
article:
(1) It cannot be located through due diligence.
(2) It has been transferred, sold or deposited with a third party.
(3) It has been placed beyond the jurisdiction of the court.
(4) It has been substantially diminished in value or has been commingled with other
property and cannot be divided without difficulty or undue injury to innocent persons.
(e) After the state or political subdivision is granted clear title under the provisions of
section eleven, twelve or thirteen of this article, the prosecutor shall direct disposition of the
property pursuant to this article, making due provisions for the rights of innocent persons.
(f) Any interest in property not exercisable by, or transferable for value to, the state or
political subdivision shall expire and may not revert to the offender or delinquent child who
forfeited the property. The offender or delinquent child may not purchase the property at a sale
under this article.
(g) Any income accruing to or derived from forfeited property may be used to offset
ordinary and necessary expenses related to the property that are required by law or necessary to
protect the interest of the state, political subdivision or third parties.
§61-13-16. Interference with or diminishing forfeitable property.
(a) A person may not destroy, damage, remove, or transfer property that is subject to
forfeiture or otherwise take any action in regard to property that is subject to forfeiture with
purpose to do any of the following:
(1) Prevent or impair the state's or political subdivision's lawful authority to take the
property into its custody or control under this article or to continue holding the property under its
lawful custody or control;
(2) Impair or defeat the court's continuing jurisdiction over the person and property;
(3) Devalue property that the person knows, or has reasonable cause to believe, is subject
to forfeiture proceedings under this article.
(b)(1) Whoever violates the provisions of this section is guilty of interference with or
diminishing forfeitable property.
(2) A person who interferes with or diminishes forfeitable property is guilty of a felony
and, upon conviction thereof, shall be fined not more than $1000 or imprisoned in a state
correctional facility not less than one year, or both fined and imprisoned.
§61-13-17. Right to trial by jury.
Parties to a forfeiture action under this article have a right to trial by jury as follows:
(a) In a criminal forfeiture action, the defendant has the right to trial by jury.
(b) In a civil forfeiture action, the defendant, the state or political subdivision and third
party claimants have the right to trial by jury.
§61-13-18. Forfeiture of property as instrumentality where value disproportionate.
(a) Property may not be forfeited as an instrumentality under this article to the extent that
the amount or value of the property is disproportionate to the severity of the offense. The owner
of the property shall have the burden of going forward with the evidence and the burden to prove
by a preponderance of the evidence that the amount or value of the property subject to forfeiture
is disproportionate to the severity of the offense.
(b) Contraband and any proceeds obtained from the offense are not subject to
proportionality review under this section.
(c) In determining the severity of the offense for purposes of forfeiture of an instrumentality, the court shall consider all relevant factors including, but not limited to, the
following:
(1) The seriousness of the offense and its impact on the community, including the
duration of the activity and the harm caused or intended by the person whose property is subject
to forfeiture;
(2) The extent to which the person whose property is subject to forfeiture participated in
the offense;
(3) Whether the offense was completed or attempted.
(d) In determining the value of the property that is an instrumentality and that is subject to
forfeiture, the court shall consider relevant factors including, but not limited to, the following:
(1) The fair market value of the property;
(2) The value of the property to the person whose property is subject to forfeiture,
including hardship to the person or to innocent persons if the property were forfeited.
§61-13-19. Care of property in law-enforcement custody.
(a)(1) Any property that has been lost, abandoned, stolen, seized pursuant to a search
warrant, or otherwise lawfully seized or forfeited and that is in the custody of a law-enforcement
agency shall be kept safely by the agency, pending the time it no longer is needed as evidence or
for another lawful purpose, and shall be disposed of pursuant to the provisions of sections twenty
and twenty-one of this article.
(2) This article does not apply to the custody and disposal of any of the following:
(A) Items seized under the provisions of:
(i) Article three-a, chapter sixty of this code, relating to sales by retail liquor licensees;
(ii) Article four, chapter sixty of this code, relating to licenses under the state control of
alcoholic liquors;
(iii) Article six, chapter sixty of this code, relating to miscellaneous provisions under the
state control of alcoholic liquors; or
(iv) Article seven, chapter sixty-a of this code, commonly known as the 'West Virginia
Contraband Forfeiture Act'.
(B) Abandoned junk motor vehicles or other property of negligible value;
(C) Property held by a department of rehabilitation and correction institution that is
unclaimed, that does not have an identified owner, that the owner agrees to dispose of, or that is
identified by the department as having little value;
(D) Animals taken, and devices used in unlawfully taking animals, under the provisions
of:
(i) Section four, article ten, chapter seven of this code, relating to custody and care of
animals abandoned, neglected or cruelly treated;
(ii) Section eight, article twenty, chapter nineteen of this code, relating to dogs and cats,
impounding and disposition;
(iii) Section twenty-three, article twenty, chapter nineteen of this code, relating to dogs
and cats, impounding and disposition;
(iv) Section five-a, article two, chapter twenty of this code, relating to wildlife resources,
forfeiture by person causing injury, death or destruction of game of protected species of animal;
(v) Section five-c, article two, chapter twenty of this code, relating to wildlife resources,
protection of bald eagles and golden eagles and forfeiture;
(vi) Section nineteen-a, article eight of this chapter, relating to cruelty to animals; and
(vii) Section nineteen-a, article eight of this chapter, relating to prohibiting animal
fighting ventures.
(b)(1) Each law-enforcement agency that has custody of any property that is subject to
this section shall adopt and comply with a written internal control policy that does all of the
following:
(A) Provides for keeping detailed records as to the amount of property acquired by the
agency and the date property was acquired;
(B) Provides for keeping detailed records of the disposition of the property, which shall
include, but not be limited to, both of the following:
(i) The manner in which it was disposed, the date of disposition, detailed financial records
concerning any property sold, and the name of any person who received the property. The record
shall not identify or enable identification of the individual officer who seized any item of
property.
(ii) The general types of expenditures made with amounts that are gained from the sale of
the property and that are retained by the agency, including the specific amount expended on each
general type of expenditure, except that the policy may not provide for or permit the
identification of any specific expenditure that is made in an ongoing investigation.
(C) Complies with section twenty of this article if the agency has a Law-enforcement
Trust Fund or similar fund created under that section.
(2) Each law-enforcement agency that during any calendar year has any seized or forfeited
property covered by this section in its custody, including amounts distributed under section thirteen of this article to its Law-enforcement Trust Fund or a similar fund created for the West
Virginia State Police, the State Tax Division or State Board of Pharmacy, shall prepare a report
covering the calendar year that cumulates all of the information contained in all of the public
records kept by the agency pursuant to this section for that calendar year. The agency shall send
a copy of the cumulative report to the Attorney General not later than March 1 in the calendar
year following the calendar year covered by the report.
(3) The records kept under the internal control policy shall be open to public inspection
during the agency's regular business hours.
(4) Not later than April 15 in each calendar year in which reports are sent to the Attorney
General under subsection (b)(2) of this section, the Attorney General shall send to the President
of the Senate and the Speaker of the House of Delegates a written notice that indicates that the
Attorney General received reports that cover the previous calendar year, that the reports are open
for inspection under and that the Attorney General will provide a copy of any or all of the reports
to the President of the Senate or the Speaker of the House of Delegates upon request.
(c) A law-enforcement agency with custody of property to be disposed of under the
provisions of sections fourteen or fifteen of this article section shall make a reasonable effort to
locate persons entitled to possession of the property, to notify them of when and where it may be
claimed, and to return the property to them at the earliest possible time. In the absence of
evidence identifying persons entitled to possession, it is sufficient notice to advertise in a
newspaper of general circulation in the county and to briefly describe the nature of the property
in custody and inviting persons to view and establish their right to it.
(d) As used in this article: 'Law-enforcement agency' includes correctional institutions.
§61-13-20. Disposal of unclaimed or forfeited property.
(a) Unclaimed or forfeited property in the custody of a law-enforcement agency, other
than property described in subsection (a)(2) of section nineteen of this article, shall be disposed
of by order of any court of record that has territorial jurisdiction over the political subdivision
that employs the law-enforcement agency, as follows:
(1) Drugs shall be disposed of pursuant to the provisions of chapter sixty-a of this code.
(2) Firearms and dangerous ordnance suitable for police work may be given to a
law-enforcement agency for that purpose. Firearms suitable for sporting use or as museum
pieces or collectors' items may be sold at public auction pursuant to subsection (b) of this
section. The agency shall destroy other firearms and dangerous ordnance or shall send them to
the State Police for destruction by the State Police.
(3) Obscene materials shall be destroyed.
(4) Beer, intoxicating liquor, or alcohol seized from a person who does not hold a permit
issued under the provisions of chapter sixty of this code or otherwise forfeited to the state for an
offense under the provisions of that chapter shall be sold by the Alcohol Beverage Control
Commissioner if the commissioner determines that it is fit for sale or shall be placed in the
custody of the investigations unit in the State Police and be used for training relating to law
enforcement activities, notwithstanding any other existing provision of law to the contrary. All
other money collected under this division shall be paid in accordance with this code. Any beer,
intoxicating liquor or alcohol that the commissioner determines to be unfit for sale shall be
destroyed.
(5) Money received by an inmate of a correctional institution from an unauthorized source or in an unauthorized manner shall be returned to the sender, if known, or deposited in the
inmates' industrial and entertainment fund of the institution if the sender is not known.
(6) Any mobile instrumentality forfeited under this article may be given to the
law-enforcement agency that initially seized the mobile instrumentality for use in performing its
duties, if the agency wants the mobile instrumentality. The agency shall take the mobile
instrumentality subject to any security interest or lien on the mobile instrumentality.
(7) Vehicles and vehicle parts forfeited under the provisions of section two of this article
may be given to a law-enforcement agency for use in performing its duties. Those parts may be
incorporated into any other official vehicle. Parts that do not bear vehicle identification numbers
or derivatives of them may be sold or disposed of as provided by rules of the Commissioner of
Motor Vehicles. Parts from which a vehicle identification number or derivative of it has been
removed, defaced, covered, altered, or destroyed and that are not suitable for police work or
incorporation into an official vehicle shall be destroyed and sold as junk or scrap.
(8) Computers, computer networks, computer systems and computer software suitable for
police work may be given to a law-enforcement agency for that purpose or disposed of
subsection (b) of this section.
(b) Unclaimed or forfeited property that is not described in subsection(a) of this section,
with court approval, may be used by the law-enforcement agency who confiscated the item. If it
is not used by the agency, it may be sold without appraisal at a public auction to the highest
bidder for cash or disposed of in another manner that the court considers proper.
(c) Except as provided in subections (a) and (f) of this section and after compliance with
subsection (d) of this section when applicable, any moneys acquired from the sale of property disposed of pursuant to this section shall be distributed as follows:
(1) First, to pay costs incurred in the seizure, storage, maintenance, security and sale of
the property and in the forfeiture proceeding;
(2) Second, in a criminal forfeiture case, to satisfy any restitution ordered to the victim of
the offense or, in a civil forfeiture case, to satisfy any recovery ordered for the person harmed,
unless paid from other assets;
(3) Third, to pay the balance due on any security interest preserved under this article;
(4) Fourth, apply the remaining amounts as follows:
(A) Twenty percent to the Regional Jail Authority to offset the per diem rate for every
county;
(B) Ten percent to the county prosecutor; and
(C) Seventy percent divided among the investigating agencies through a memo of
understanding.
(d) Any property forfeited under this article shall not be used to pay any fine imposed
upon a person who is convicted of or pleads guilty to an underlying criminal offense or a
different offense arising out of the same facts and circumstances.
§61-13-21. Sale of forfeited property - application of proceeds - forfeiture funds.
(a) Except as otherwise provided in this section, property ordered forfeited as contraband,
proceeds, or an instrumentality pursuant to this article shall be disposed of, used, or sold pursuant
to the provisions of section twenty-one of this article. If the property is to be sold under that
section, the prosecutor shall cause notice of the proposed sale to be given in accordance with law.
(b) If the contraband or instrumentality forfeited under this article is sold, any moneys acquired from a sale and any proceeds forfeited under this article shall be applied in the
following order:
(1) First, to pay costs incurred in the seizure, storage, maintenance, security and sale of
the property and in the forfeiture proceeding;
(2) Second, in a criminal forfeiture case, to satisfy any restitution ordered to the victim of
the offense or, in a civil forfeiture case, to satisfy any recovery ordered for the person harmed,
unless paid from other assets;
(3) Third, to pay the balance due on any security interest preserved under this article;
(4) Fourth, apply the remaining amounts as follows:
(A) Twenty percent to the Regional Jail Authority to offset the per diem rate for every
county;
(B) Ten percent to the county prosecutor; and
(C) Seventy percent divided among the investigating agencies through a memo of
understanding.
(c) Any failure of a law-enforcement officer or agency, prosecutor, court, or the Attorney
General to comply with this section in relation to any property seized does not affect the validity
of the seizure and shall not be considered to be the basis for suppressing any evidence resulting
from the seizure, provided the seizure itself was lawful.
§61-13-22. Forfeiture under federal law.
(a) Nothing in this article precludes the head of a law-enforcement agency that seizes
property from seeking forfeiture under federal law. If the property is forfeitable under this article
and federal forfeiture is not sought, the property is subject only to this article.
(b) Any law-enforcement agency that receives moneys from a sale of forfeited property
under federal law shall deposit, use, and account for the amounts, including any interest derived,
in accordance with applicable federal law."
There being no further amendments, and having been engrossed, the bill was read a third
time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No.
154), and there were--yeas 92, nays 4, absent and not voting 4, with the nays and absent and not
voting being as follows:
Nays: Schadler, Schoen, Shook and Wooton.
Absent and Not Voting: Argento, Mahan, Poling, M and Walters.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (Com. Sub. for H. B. 4382) passed.
On motion of Delegate Miley, the title of the bill was amended to read as follows:
Com. Sub. for H. B. 4382 - "A Bill to amend the Code of West Virginia, 1931, as
amended, by adding thereto a new article, designated §61-13-1, §61-13-2, §61-13-3, §61-13-4,
§61-13-5, §61-13-6, §61-13-7, §61-13-8, §61-13-9, §61-13-10, §61-13-11, §61-13-12, §61-13-
13, §61-13-14, §61-13-15, §61-13-16, §61-13-17, §61-13-18, §61-13-19, §61-13-20 and §61-13-
21 all relating to establishment of the West Virginia Civil and Criminal Forfeiture Act;
establishing civil and criminal forfeiture proceedings pertaining to property and assets used in,
acquired, gained or flowing from gained from various criminal activities and juvenile offenses;
providing definitions; statement of purpose of forfeitures; identifying property subject to
forfeiture; establishing exemptions; providing the state with provisional title to property subject to forfeiture; establishing procedures seizure of property; establishing protections for innocent
third party owners and interest holders; establishing a procedure for processing uncontested
forfeitures; establishing general procedures for challenging and evaluating forfeiture procedures;
providing for the filing and processing of petitions for in rem forfeiture proceedings; providing
for the filing and processing and establishing related procedures for in personam forfeiture
proceedings; allowing additional procedures applicable in criminal and civil proceedings in
which forfeiture of property is sought; allowing for forfeiture of and execution on substitute
property under certain conditions; allowing for release of seized property upon provision of
adequate security bond or deposit; providing certain exceptions and limitations; establishing
procedures for forfeiture; establishing burdens of proof; providing for the seizure and disposition
of forfeited and other property; civil forfeiture action and pretrial hardship release; establishing
the crime of interference with or diminishing forfeitable property; providing right to trial by jury;
creating standards and procedures for care of property in law-enforcement custody; providing
provisions for the sale of forfeited property; prioritizing and directing the application of proceeds
and forfeiture funds; providing exceptions; and penalties."
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
Com. Sub. for H. B. 4527, Limiting the liability of apiary owners and operators; on third
reading, coming up in regular order, was read a third time.
Delegates Canterbury and Williams requested to be excused from voting on the passage
of Com. Sub. for H. B. 4527 under the provisions of House Rule 49.
The Speaker refused to excuse the Members from voting, stating that they were members of a class of persons possibly to be affected by the passage of the bill and that they demonstrated
no direct personal or pecuniary interest therein.
The question being on the passage of the bill, the yeas and nays were taken (Roll No.
155), and there were--yeas 94, nays 2, absent and not voting 4, with the nays and absent and not
voting being as follows:
Nays: Cowles and McGeehan.
Absent And Not Voting: Argento, Mahan, M. Poling and Walters.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (Com. Sub. for H. B. 4527) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
Com. Sub. for H. B. 4541, Authorizing circuit court judges and magistrates to utilize
county or municipal jails to detain persons charged with a crime up to ninety-six hours, or, to
confine persons convicted of a crime for not more than fourteen days; on third reading, coming
up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No.
156), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting
being as follows:
Absent And Not Voting: Argento, Mahan, M. Poling and Walters.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (Com. Sub. for H. B. 4541) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4589, Conforming article three of chapter three of the Code of West Virginia, to the
requirements of the Military and Overseas Voter Empowerment Act of 2009; on third reading,
coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No.
157), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting
being as follows:
Absent And Not Voting: Argento, Mahan, M. Poling and Walters.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (H. B. 4589) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
Com. Sub. for H. B. 4167, Creating a special revenue fund, known as the Department of
Health and Human Resources Safety and Treatment Fund; on third reading, coming up in regular
order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No.
158), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting
being as follows:
Absent And Not Voting: Argento, Mahan, M. Poling and Walters.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (Com. Sub. for H. B. 4167) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4177, Dedicating five percent of coal severance tax to the county of origin; on third
reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No.
159), and there were--yeas 95, nays 1, absent and not voting 4, with the nays and absent and not
voting being as follows:
Nays: Sobonya.
Absent And Not Voting: Argento, Mahan, M. Poling and Walters.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (H. B. 4177) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
Com. Sub. for H. B. 4201, Creating the Livestock Care Standards Board; on third
reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No.
160), and there were--yeas 95, nays 1, absent and not voting 4, with the nays and absent and not
voting being as follows:
Nays: Andes.
Absent And Not Voting: Argento, Mahan, M. Poling and Walters.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (Com. Sub. for H. B. 4201) passed.
On motion of Delegate Miley, the title of the bill was amended to read as follows:
Com. Sub. for H. B. 4201 - "A Bill to amend the Code of West Virginia, 1931, as
amended, by adding thereto a new article, designated §19-1C-1, §19-1C-2, §19-1C-3, §19-1C-4,
§19-1C-5 and §19-1C-6, all relating to establishing the Livestock Care Standards Board; defining
terms; specifying conditions of membership and the qualifications, terms and compensation of
members; authoring legislative rulemaking; and providing for meetings of the board."
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
Com. Sub. for H. B. 4273, Relating to professional employer organizations; on third
reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No.
161), and there were--yeas 95, nays 1, absent and not voting 4, with the nays and absent and not
voting being as follows:
Nays: McGeehan.
Absent And Not Voting: Argento, Mahan, M. Poling and Walters.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (Com. Sub. for H. B. 4273) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
Com. Sub. for H. B. 4291, Eliminating duplicitous criminal background investigations
with both the West Virginia State Police and the Federal Bureau of Investigation; on third
reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 162), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting
being as follows:
Absent And Not Voting: Argento, Mahan, M. Poling and Walters.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (Com. Sub. for H. B. 4291) passed.
On motion of Delegate Miley, the title of the bill was amended to read as follows:
Com. Sub. for H. B. 4291 - "A Bill to amend and reenact §31A-2-4 of the Code of West
Virginia, 1931, as amended, relating to criminal background investigations for applicants seeking
approval to engage in certain banking activities under the jurisdiction of the Commissioner of
Banking; eliminating the requirement that the investigations be done through both the West
Virginia State Police and the Federal Bureau of Investigation; providing that applicants provide
fingerprints for submission to the Federal Bureau of Investigation or any governmental agency or
entity authorized to receive such information for a state, national or international criminal history
check."
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
Com. Sub. for H. B. 4512, Relating to school bus operators; on third reading, coming up
in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No.
163), and there were--yeas 95, nays 1, absent and not voting 4, with the nays and absent and not
voting being as follows:
Nays: Andes.
Absent And Not Voting: Argento, Mahan, M. Poling and Walters.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (Com. Sub. for H. B. 4512) passed.
Delegate Boggs moved that the bill take effect July 1, 2010.
On this question, the yeas and nays were taken (Roll No. 164), and there were--yeas 96,
nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Argento, Mahan, M. Poling and Walters.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4512) takes effect July 1, 2010.
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
Com. Sub. for H. B. 4531, Mandating that shackling of pregnant women who are
incarcerated is not allowed except in extraordinary circumstances; on third reading, coming up in
regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No.
165), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting
being as follows:
Absent And Not Voting: Argento, Mahan, M. Poling and Walters.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (Com. Sub. for H. B. 4531) passed.
On motion of Delegate Miley, the title of the bill was amended to read as follows:
Com. Sub. for H. B. 4531 - "A Bill to amend and reenact §25-1-16 of the Code of West Virginia, 1931, as amended; to further amend said code by adding thereto a new section,
designated §31-20-30a; and to amend and reenact §49-5E-6 of said code, all relating to the
proper care of inmates in state institutions or facilities; authorizing the transfer of inmates with
mental health needs; authorizing the transfer of inmates for medical reasons under appropriate
supervision; providing criteria, standards and limitations relating to the proper treatment of
pregnant inmates; authorizing restraint of pregnant inmates when necessary; and providing
criteria, standards and limitations relating to the proper treatment of pregnant juveniles in the
custody of the Division of Juvenile Services."
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
Com. Sub. for H. B. 4260, Relating to insurance adjusters; on third reading, coming up
in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No.
166), and there were--yeas 95, nays 1, absent and not voting 4, with the nays and absent and not
voting being as follows:
Nays: McGeehan.
Absent And Not Voting: Argento, Mahan, M. Poling and Walters.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (Com. Sub. for H. B. 4260) passed.
On motion of Delegate Miley, the title of the bill was amended to read as follows:
Com. Sub. for H. B. 4260 - "A Bill to amend and reenact §25-1-16 of the Code of West
Virginia, 1931, as amended; to further amend said code by adding thereto a new section, designated §31-20-30a; and to amend and reenact §49-5E-6 of said code, all relating to the
proper care of inmates in state institutions or facilities; authorizing the transfer of inmates with
mental health needs; authorizing the transfer of inmates for medical reasons under appropriate
supervision; providing criteria, standards and limitations relating to the proper treatment of
pregnant inmates; authorizing restraint of pregnant inmates when necessary; and providing
criteria, standards and limitations relating to the proper treatment of pregnant juveniles in the
custody of the Division of Juvenile Services."
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
Com. Sub. for H. B. 4285, Relating to the licensing of residential mortgage brokers,
lenders and loan originators by the Division of Banking; on third reading, coming up in regular
order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No.
167), and there were--yeas 95, nays 1, absent and not voting 4, with the nays and absent and not
voting being as follows:
Nays: McGeehan.
Absent And Not Voting: Argento, Mahan, M. Poling and Walters.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (Com. Sub. for H. B. 4285) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
Com. Sub. for H. B. 4323, Prohibiting use of turning lanes for through traffic under
certain circumstances; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No.
168), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting
being as follows:
Absent And Not Voting: Argento, Beach, Mahan, M. Poling and Walters.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (Com. Sub. for H. B. 4323) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
Com. Sub. for H. B. 4339, Relating to collecting debts through the United States
Treasury Offset Program; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No.
169), and there were--yeas 94, nays 1, absent and not voting 5, with the nays and absent and not
voting being as follows:
Nays: Ellem.
Absent And Not Voting: Argento, Beach, Mahan, M. Poling and Walters.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (Com. Sub. for H. B. 4339) passed.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 170), and there were--yeas 95,
nays none, absent and not voting 5, with the absent and not voting being as follows:
Absent And Not Voting: Argento, Beach, Mahan, Poling, M and Walters.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4339) takes effect from its
passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
Com. Sub. for H. B. 4374, Caregivers Consent Act; on third reading, coming up in
regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No.
171), and there were--yeas 91, nays 5, absent and not voting 4, with the nays and absent and not
voting being as follows:
Nays: Andes, Armstead, Ireland, Lane and Sobonya.
Absent And Not Voting: Argento, Mahan, M. Poling and Walters.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (Com. Sub. for H. B. 4374) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
Com. Sub. for H. B. 4407, Updating the law regarding the rabies vaccinations of dogs
and cats; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No.
172), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting
being as follows:
Absent And Not Voting: Argento, Mahan, M. Poling and Walters.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (Com. Sub. for H. B. 4407) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
Com. Sub. for H. B. 4425, Developing a pilot program for unlicensed personnel to
administer medication in a nursing home; on third reading, coming up in regular order, was read
a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No.
173), and there were--yeas 91, nays 5, absent and not voting 4, with the nays and absent and not
voting being as follows:
Nays: Cowles, Ellem, Ireland, Lane and Sumner.
Absent And Not Voting: Argento, Mahan, M. Poling and Walters.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (Com. Sub. for H. B. 4425) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
H. B. 4634, Defining "spelunking" as a recreational purpose and activity for which a
landowner's liability for injury is limited; on third reading, coming up in regular order, was read a
third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No.
174), and there were--yeas 95, nays 1, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: McGeehan.
Absent And Not Voting: Argento, Mahan, M. Poling and Walters.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (H. B. 4634) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
Com. Sub. for H. B. 4666, Establishing a grant program for substance abuse prevention;
on third reading, coming up in regular order, with an amendments pending, was reported by the
Clerk.
Delegate Blair moved to amend the bill on page two line twenty-six following the word
"code", by inserting the following:
" Each West Virginia state personal income tax taxpayer may voluntarily contribute a
portion of the taxpayer's state income tax refund, up to $6,000, for deposit into the fund through
a check-off designation on the state personal income tax return form. If a husband and wife file a
joint return, each spouse may designate up to $6,000 for deposit into the fund. All amounts so
designated shall be deducted from the taxpayers' income tax refund and credited to the fund.
The State Tax Commissioner shall determine by July 1 of each year the total amount designated
pursuant to this subsection and shall report that amount to the State Treasurer, who shall credit
that amount to the fund. Any donation to this fund from this checkoff shall be used to fund
development of the drug testing plan referenced in §16-43-4(c), and shall be clearly designated as
such on the tax form. "
And,
On page five following subsection (b) by inserting a new subsection (c), to read as
follows:
"(c) The board shall develop a plan to institute a random drug testing program for all
applicants for temporary assistance for needy families cash benefits. The plan would require, at a
minimum, that applicants chosen for drug testing be selected at random, and not by any other
criteria, including, but not limited to, suspicion of drug use, previous drug use or criminal
conviction for drug use or possession, and must further ensure the confidentiality of any and all
drug test results administered as part of the program. Random drug test results should only be
used for the purpose of denying, or determining eligibility for continued receipt of, federal-state
or state assistance in the form of temporary assistance for needy families cash benefits. At no
time shall the drug test results be released to any public or private person or entity."
Delegate Boggs arose to a point of order as to the germaneness of the amendment.
To the point of order, the Speaker replied, as follows:
The Speaker. "The fundamental purpose of H. B. 4666 is to establish a funding
mechanism for substance abuse prevention, intervention, treatment and recovery services to
include funding from the medicaid excess fund, when available, and also by additional
appropriation by the Legislature.
The amendment offered by the Gentleman from the 52nd, Delegate Blair, seeks, among
other things, to establish a state income tax check-off program for deposit into the fund.
However, the amendment additionally inserts a new subsection which requires the Alcohol and
Drug Disbursement Board to develop a plan to institute a random drug testing program for all applicants for temporary assistance for needy families cash benefits. The random drug test
results would be used for denial or determining eligibility for continued receipt of state of
federal-state assistance benefits.
Clearly, the fundamental purpose of the amendment is not germane to the fundamental
purpose of the bill to which it is offered."
On motion of Delegate Blair, the bill was amended on page four, line nine following the
word "of", by striking out the word ten and inserting in lieu thereof the word "eleven".
And,
On page four, line twenty two, following the word "well-being" and the semicolon, by
inserting the words "one member of the recovered community", followed by a semicolon.
There being no further amendments, and having been engrossed, the bill was read a third
time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No.
175), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting
being as follows:
Absent And Not Voting: Argento, Mahan, M. Poling and Walters.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (Com. Sub. for H. B. 4666) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
Com. Sub. for H. B. 4223, Increasing the safety of school children that use school buses;
on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No.
176), and there were--yeas 94, nays none, absent and not voting 6, with the absent and not voting
being as follows:
Absent And Not Voting: Argento, Blair, Mahan, M. Poling Schoen and Walters.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (Com. Sub. for H. B. 4223) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
H. B. 4485, Increasing the penalties for overtaking and passing a school bus; on third
reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No.
177), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting
being as follows:
Absent And Not Voting: Argento, Mahan, Poling, M and Walters.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (H. B. 4485) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
Com. Sub. for H. B. 4506, Relating to the revocation of death benefits by divorce; on
third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No.
178), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Argento, Mahan, Poling, M and Walters.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (Com. Sub. for H. B. 4506) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
Com. Sub. for H. B. 4630, Relating to refunding of appraisal fees; on third reading,
coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No.
179), and there were--yeas 93, nays 3, absent and not voting 4, with the nays and absent and not
voting being as follows:
Nays: Lane, Louisos and Reynolds.
Absent And Not Voting: Argento, Mahan, M. Poling and Walters.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (Com. Sub. for H. B. 4630) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
H. B. 4496, Prohibiting bail bonding companies or bail bond enforcers from providing
fiduciary bonds for estates; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No.
180), and there were--yeas 95, nays 1, absent and not voting 4, with the nays and absent and not
voting being as follows:
Nays: McGeehan.
Absent And Not Voting: Argento, Mahan, M. Poling and Walters.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (H. B. 4496) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
Com. Sub. for H. B. 4604, Increasing the criminal penalties for persons who obstruct,
flee from or make false statements to law-enforcement officers; on third reading, coming up in
regular order, with the restricted right to amend, was reported by the Clerk.
On motion of Delegates Miley and Armstead, the bill was amended on page four, section
seventeen, lines forty-five through fifty following the words "is guilty of a", by striking the
remainder of the sentence, and inserting in lieu thereof, the following:
"misdemeanor and, upon conviction thereof, shall be fined not less than $500 nor more
than $1,000 and shall be confined imprisoned in the county or regional jail a state correctional
facility not more than one year.
(f) Any person who intentionally flees or attempts to flee in a vehicle from any law-
enforcement officer, probation officer or parole officer acting in his or her official capacity, after
the officer has given a clear visual or audible signal directing the person to stop, and who
operates the vehicle in a manner showing a reckless indifference of the risk of injury to others, is
guilty of a felony and, upon conviction thereof, shall be fined not less than $1,000 nor more than
$2,000, and shall be imprisoned in a state correctional facility not less than one nor more than
five years."
And,
By re-lettering the remainder of the subsections of the section accordingly.
There being no further amendments, and having been engrossed, the bill was read a third
time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No.
181), and there were--yeas 93, nays 3, absent and not voting 4, with the nays and absent and not
voting being as follows:
Nays: Butcher, Poore and Porter.
Absent And Not Voting: Argento, Mahan, M. Poling and Walters.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (Com. Sub. for H. B. 4604) passed.
On motion of Delegate Miley, the title of the bill was amended to read as follows:
Com. Sub, for H. B. 4604 "A Bill to amend and reenact §61-5-17 of the Code of West
Virginia, 1931, as amended, relating to increasing the criminal penalties for crimes against law
enforcement, probation and parole officers; establishing crime for disarming or attempting to
disarm probation and parole officers; establishing new crime for reckless fleeing; increasing
penalties for fleeing or attempting to flee in a vehicle; increasing penalties for fleeing or
attempting to flee in a vehicle causing property damage; increasing penalties for fleeing or
attempting to flee in a vehicle causing injury; increasing penalties for fleeing or attempting to flee
in a vehicle causing death; and designating this act as the "Jerry Alan Jones Act."
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
Com. Sub. for H. B. 4667, Requiring the Commissioner of Highways to maintain school
bus turnarounds in the state; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No.
182), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting
being as follows:
Absent And Not Voting: Argento, Mahan, M. Poling and Walters.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (Com. Sub. for H. B. 4667) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
Com. Sub. for H. B. 4172, Authorizing the Division of Motor Vehicles to issue special
license plates for members of certain organizations upon approval of the commissioner; on third
reading, coming up in regular order, with an amendment pending, was reported by the Clerk.
Delegate Cowles had heretofore pre-filed an amendment to the bill, but on last evening he
requested the return of the same from the Clerk.
There being no further amendments, the bill was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No.
183), and there were--yeas 95, nays 1, absent and not voting 4, with the nays and absent and not
voting being as follows:
Nays: Carmichael.
Absent And Not Voting: Argento, Mahan, M. Poling and Walters.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4172) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
Com. Sub. for H. B. 4450, Relating to land surveyors; on third reading, coming up in
regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No.
184), and there were--yeas 94, nays 2, absent and not voting 4, with the nays and absent and not
voting being as follows:
Nays: McGeehan and Porter.
Absent And Not Voting: Argento, Mahan, Poling, M and Walters.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (Com. Sub. for H. B. 4450) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
Com. Sub. for H. B. 4314, Regarding the valuation of motor vehicles and motorcycles
for property tax assessment purposes; on third reading, coming up in regular order, with an
amendment pending, was reported by the Clerk.
The Clerk reported an amendment offered by Delegate Porter.
Whereupon,
Delegate Porter asked and obtained unanimous consent that the amendment be
withdrawn.
There being no further amendments, and having been engrossed, the bill was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No.
185), and there were--yeas 95, nays 1, absent and not voting 4, with the nays and absent and not
voting being as follows:
Nays: Schoen.
Absent And Not Voting: Argento, Mahan, Poling, M and Walters.
So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (Com. Sub. for H. B. 4314) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House
of Delegates and request concurrence therein.
First Reading
The following bills on first reading, coming up in regular order, were each read a first
time and ordered to second reading:
Com. Sub. for S. B. 349, Requiring child care centers have written evacuation plan,
And,
S. B. 514, Clarifying certain language in Controlled Substances Monitoring Act.
Leaves of Absence
At the request of Delegate Boggs, and by unanimous consent, leaves of absence for the
day were granted Delegates Argento, Mahan, M. Poling and Walters.
Miscellaneous Business
Delegate Ennis asked and obtained unanimous consent that the remarks of Delegate s
Sobonya and Fleischauer regarding
H. B. 4485, Increasing the penalties for overtaking and passing a school bus, be printed in the Appendix to the Journal.
At 3:41 p.m., the House of Delegates adjourned until 11:00 a.m., Thursday, March 4,
2010.
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