FISCAL NOTE
Date Requested: January 30, 2023
Time Requested: 12:55 PM |
| Agency: |
Public Defender Services |
|---|
| CBD Number: |
Version: |
Bill Number: |
Resolution Number: |
| 2975 |
Introduced |
HB3156 |
|
|---|
| CBD Subject: |
Boards and Commissions |
|---|
|
FUND(S):
General 0226
Sources of Revenue:
General Fund
Legislation creates:
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 revises the statutory provision governing payment to private counsel who take court-appointments, i.e., W. Va. Code s. 29-21-13a. The legislation proposes raising the amount of fees and expenses which may be paid by Public Defender Services without an order of the court. This proposal would be an administrative convenience to the courts, the court-appointed counsel, and the agency and would have no impact on the cost of state government. Moreover, it would reflect the 2019 increase in the rates of compensation for court-appointed counsel as no adjustment was made to the fee and expense caps at that time.
The legislation further proposes an increase in the amount that court-appointed counsel may pay investigators by ten (10) dollars an hour. This would increase the amount paid by Public Defender Services for investigative expenses by $85,033.
Finally, the legislation proposes that court-appointed counsel be compensated for efforts to obtain an expungement on behalf of a client who has been found not guilty of the imposed charges or whose charges have been dismissed. Compensation over $1,000 would require court approval as would incurred expenses over $500. Public Defender Services cannot provide an estimate of the cost to the state because Public Defender Services doe not have the data, or access to the data, to determine the number of qualifying proceedings.
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 |
85,033 |
85,033 |
85,033 |
| Personal Services |
85,033 |
85,033 |
85,033 |
| 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.
Compensation/Expense Limits:
Currently, fees in non-capital cases that exceed $3,000 require an order of the court permitting this cap to be exceeded. The legislation raises this cap to $4,500. Currently, expenses in non-capital cases that exceed $1,500 require an order of the court permitting the cap to be exceeded. The legislation raises this cap to $2,500. In 2019, the rate of compensation for attorneys was increased by 33-1/3%, but the caps were not raised. Accordingly, the same number of hours could be worked in a matter, but, after 2019, the cap could be reached when historically it would not have been.
Raising the caps should not increase the cost to the state. Judges routinely enter the order to exceed these caps. Raising the amount would ease the administrative burden on the court, the court-appointed counsel and the agency. Moreover, it mirrors the increase in the attorneys’ rate of compensation. The caps should not be removed, however, because it does provide awareness to the court of the amount being requested by attorneys in various matters and could help to identify potential billing issues.
Investigator’s Fee:
An investigator's fee is an expense that, currently, Public Defender Services reimburses at a rate of $30 an hour if approved by the court. The Executive Director of Public Defender Services used his statutory discretion to permit the submission of these expenses to the agency for direct payment to the service provider because most panel attorneys cannot afford to pay such expenses out-of-pocket and then await reimbursement until after the case has been closed and the attorney’s voucher has been submitted to the agency. W. Va. Code §29-21-13a(h).
In FY2017, the total amount of payments related to investigative services, either to the attorney or directly to the investigator, was $316,225. (PDS 2017 Annual Report, p. 69). In FY2018, the total amount was $322,489. (PDS 2018 Annual Report, p. 71). In FY2019, the total amount was $315,550. (PDS 2019 Annual Report, p. 58). The expenses lessened during the pandemic years. In FY2020, the total amount was $166,277. (PDS 2020 Annual Report, p. 30). And in FY2021, the total amount was $154,965. (PDS 2021 Annual Report, p. 39).
Due to the potential suppression of services during the pandemic, PDS will use the average expenditure for investigative services during the listed fiscal years, which is $255,101. The proposed increase in the hourly rate for reimbursement from $30 to $40 is a 33-1/3% increase. Accordingly, the increase in annual expenditures would be 33-1/3% of the three-year average of $255,101, which is $85,033.
Expungements:
Public Defender Services has no data, or access to data, enabling the agency to determine how many qualifying expungement proceedings would be commenced by court-appointed counsel under the proposed legislation.
Notably, expungement proceedings are civil matters and are not within the scope of the definition of an "eligible proceeding” under W. Va. Code s. 29-21-2(2). The proposed legislation would seemingly make expungement proceedings an “ancillary proceeding” to the eligible proceeding, thus enabling the court to appoint counsel or extend the appointment of counsel.
But, again, the agency has no information from which to make an estimate of the resulting cost to the state.
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 enables private counsel who are court-appointed in a criminal proceeding to handle expungement proceedings as, essentially, an ancillary proceeding to an eligible proceedings. The legislation does not extend this same authority to public defenders and assistant public defenders.
Moreover, Legal Aid of West Virginia, Inc., offers legal services to qualified individuals to expunge criminal records. The non-profit legal aid corporation organizes clinics that assist individuals in completing paperwork to commence such proceedings. The involvement of criminal defense attorneys in this work might impinge on the mission of the legal aid corporation.
Person submitting Fiscal Note: Dana F. Eddy
Email Address: Dana.F.Eddy@wv.gov