FISCAL NOTE

Date Requested: January 16, 2023
Time Requested: 08:43 AM
Agency: Public Defender Services
CBD Number: Version: Bill Number: Resolution Number:
1709 Introduced HB2404
CBD Subject:


FUND(S):

General 0226

Sources of Revenue:

General Fund

Legislation creates:

Creates New Revenue, Increases Existing Expenses



Fiscal Note Summary


Effect this measure will have on costs and revenues of state government.


Summarize in a clear and concise manner what impact this measure will have on costs and revenues of state government. The legislation mandates a legal obligation to be imposed on all indigent criminal defendants, whether an adverse judgment has been entered or not, in the form of a judgment for the amount of the compensation paid on vouchers submitted by court-appointed counsel. Currently, imposition of costs is in the discretion of the presiding court only if an adverse judgment is entered. The mandated legal obligation will be set forth in the presiding court's order of judgment. Public Defender Services is to then docket the judgment in the office of the clerk of the county commission for the county in which the services were performed, thus creating, presumably, a lien on property of the indigent defendant. Public Defender Services is to then send the judgment to the Tax Division for prospective garnishment against tax refunds to the indigent defendant. Garnishment is limited to 25 percent of any refund in any tax year. The Tax Division may waive garnishment if undue hardship would ensue. The legislation does not govern the repayment of services provided by public defender corporations.



Fiscal Note Detail


Effect of Proposal Fiscal Year
2023
Increase/Decrease
(use"-")
2024
Increase/Decrease
(use"-")
Fiscal Year
(Upon Full
Implementation)
1. Estmated Total Cost 47,765 47,765 47,765
Personal Services 47,765 47,765 47,765
Current Expenses 0 0 0
Repairs and Alterations 0 0 0
Assets 0 0 0
Other 0 0 0
2. Estimated Total Revenues 0 0 0


Explanation of above estimates (including long-range effect):


Please explain increases and decreases in personal services, current expenses, repairs and alterations, assets, other costs and revenues, including assumptions and data sources and delineation between start-up and ongoing costs. Please also include a long-range schedule of costs and revenues if fiscal impact is expected to vary in future years. Public Defender Services does not know the amount currently paid by indigent defendants as reimbursement of fees paid by the agency to court-appointed counsel because, pursuant to W. Va. Code s.29-21-16(h), the amount paid by indigent defendants are paid to the circuit court who quarterly pay the collected amount to the Office of Auditor for deposit into the General Revenue Fund. No report is made to Public Defender Services of the amount deposited. So, the agency cannot calculate the amount of any increase in revenue. Moreover, Public Defender Services cannot, in good faith, estimate the amount of revenue that would be generated. The agency has no information from which to determine what defendants are not incarcerated and able to pay, what defendants would be entitled to tax refunds in what amount, and what hardships might exist justifying removal of refunds from garnishment. However, the agency can provide some financial context. In Fiscal Year 2021, the agency paid for representation in felony and misdemeanor proceedings the amount of $8,696,640 in fees and $879,573 in expenses. (Public Defender Services, 2021 Annual Report, p.31). The proceedings numbered 12,347. (Public Defender Services, 2021 Annual Report, p. 23). Accordingly, over 12,000 potential orders of judgment would have to be processed and filed with the county clerks and submitted to the Tax Division. Because (i) information would have to be provided to, and received from, all fifty-five circuit clerks; (ii) over 12,000 orders of judgment would have to processed internally (iii) contact would be made daily with clerks of the county commission throughout the state and the Tax Division; and (iii) the records that would have to be maintained regarding the resulting liens, an additional staff person would have to be hired. At a salary of $30,000, the full time position would require funding in the amount of $47,765.



Memorandum


Please identify any areas of vagueness, technical defects, reasons a bill would not have a fiscal impact, and/or any special issues not captured elsewhere on this form. The proposed legislation addresses only the compensation paid to private counsel who take court appointments. The representation by the salaried public defenders and assistant public defenders is not addressed. The vouchers for panel attorneys are no longer submitted to the circuit courts for approval and are no longer filed with the clerks of the circuit court. Instead, the vouchers are electronically prepared and submitted to the agency for approval. The circuit courts are only involved when compensation limits or expense limits are exceeded or when a dispute arises over the reasonableness or necessity of an item of compensation. Accordingly, the legislation would now require, probably, the resumption of filing vouchers with the courts. Again, the legislation seemingly removes the discretion of the courts in assessing fees. This renders provision (g) of the statute superfluous or potentially in conflict with the proposed language. The legislation requires docketing of the judgment with the clerk of the county commission which creates a lien on property of the indigent defendant. No direction is provided regarding execution on the judgment lien, which is, presumably, in the name of the State of West Virginia. Finally, the current practice is for the amounts paid to be deposited into General Revenue. If this continues, a reporting requirement should be imposed so that the agency is able to report what amounts have been recovered.



    Person submitting Fiscal Note: Dana F. Eddy
    Email Address: Dana.F.Eddy@wv.gov