West Virginia Code
1 - THE GOVERNOR
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1A - ITEMIZATION OF PROPOSED APPROP
1B - CHIEF TECHNOLOGY OFFICER
1C - SCIENCE AND TECHNOLOGY COUNCIL
1D - GOVERNOR'S OFFICE OF FISCAL RI
1E - HEALTHY WEST VIRGINIA PROGRAM
2 - SECRETARY OF STATE
3 - ATTORNEY GENERAL
4 - BOARD OF PUBLIC WORKS
5 - SALARY INCREASE FOR STATE EMPLO
6 - STATE BUILDINGS
7 - SOCIAL SECURITY AGENCY
8 - PUBLIC RECORDS MANAGEMENT AND P
9 - DEPARTMENT OF COMMERCE
10 - WEST VIRGINIA PUBLIC EMPLOYEE
10A - DISQUALIFICATION FOR PUBLIC
10B - GOVERNMENT EMPLOYEES DEFERRE
10C - GOVERNMENT EMPLOYEES RETIREM
10D - CONSOLIDATED PUBLIC RETIREME
11 - HUMAN RIGHTS COMMISSION
11A - WEST VIRGINIA FAIR HOUSING A
11B - PREGNANT WORKERS' FAIRNESS A
12 - WEST VIRGINIA ANTIQUITIES COM
13 - PUBLIC EMPLOYEES' AND TEACHER
14 - WEST VIRGINIA COMMISSION FOR
14A - WEST VIRGINIA INTERPRETER FO
15 - WHITE CANE LAW
16 - WEST VIRGINIA PUBLIC EMPLOYEE
16A - THE WEST VIRGINIA HEALTH CAR
16B - WEST VIRGINIA CHILDREN'S HEA
16C - PRESCRIPTION DRUG COST MANAG
16D - WEST VIRGINIA RETIREMENT HEA
17 - WEST VIRGINIA COMMISSION ON E
18 - WEST VIRGINIA CABLE TELEVISIO
18A - TENANTS' RIGHTS TO CABLE SER
19 - DOMESTIC ALUMINUM, GLASS AND
20 - THE GOVERNOR'S COMMISSION ON
21 - ENERGY COST REDUCTION GUIDELI
22 - GOVERNMENT CONSTRUCTION CONTR
22A - DESIGN-BUILD PROCUREMENT ACT
23 - COMMISSION ON MASS TRANSPORTA
24 - WEST VIRGINIA FOREST MANAGEME
25 - RESIDENT TRUSTEE ACCOUNTS
26 - HERBERT HENDERSON OFFICE ON M
26A - WEST VIRGINIA COMMISSION FOR
27 - SEVERABILITY
28 - COMMISSION ON HOLOCAUST EDUCA
29 - EXPEDITIOUS ISSUANCE OF LICEN
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR, SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS, OFFICES, PROGRAMS, ETC.
ARTICLE 1. THE GOVERNOR.
The Governor may cause to be apprehended and imprisoned, or may compel to depart from this state, all suspicious subjects, citizens, agents or emissaries of any foreign state or power at war with the United States.
He may also cause to be apprehended and imprisoned all who in time of war, insurrection or public danger shall willfully give aid, support or information to the enemy or insurgents, or who, he shall have just cause to believe, are conspiring or combining together to aid or support any hostile action against the United States or this state.
In order to obtain information in such cases, the Governor may send for the person and papers of anyone whom he shall believe to be subject to the last two sections.
Any warrant or order of the Governor, under the three preceding sections, may be directed to any sheriff or other officer, civil or military, and shall be executed according to the terms thereof by such officer, who shall have all the powers necessary for the purpose either in or out of his county.
Any person so apprehended or imprisoned may, at the discretion of the Governor, be discharged upon giving bond with satisfactory security to leave the state and not return thereto for such period, to be stated in the bond, as the Governor may prescribe; or he may be discharged on such other terms or conditions, or without conditions, as to the Governor shall seem right and proper.
The Governor, whenever required by the executive authority of the United States pursuant to the Constitution and laws thereof, shall deliver over to justice any person found within this state who shall be charged with having committed any crime without the jurisdiction of the United States.
The Governor, though not so required, may in his discretion deliver over to justice any person found within this state who shall be charged with having committed without the jurisdiction of the United States any crime except treason, which by the laws of this state, if committed herein, would be punishable by death or imprisonment in the penitentiary. The Governor shall require such evidence of the guilt of the person so charged, as would be necessary to justify an indictment against him, had the crime charged been committed in this state. The expense of the apprehension and delivery shall be defrayed by those to whom the delivery is made.
§5-1-7. Extradition of persons charged with crime in another state or imprisoned or awaiting trial in another state.
(a) Where appearing in this article, the term "Governor" includes any person performing the functions of Governor by authority of the law of this state. The term "executive authority" includes the Governor, and any person performing the functions of Governor in a state other than this state. The term "state," referring to a state other than this state, includes any other state or territory, organized or unorganized, of the United States of America.
(b) Subject to the provisions of this article, the provisions of the Constitution of the United States controlling, and any and all acts of Congress enacted in pursuance thereof, it is the duty of the Governor of this state to have arrested and delivered up to the executive authority of any other state of the United States any person charged in that state with treason, felony, or other crime, who has fled from justice and is found in this state: Provided, That the demand or application of the executive authority of such other state is accompanied by an affidavit or sworn evidence that the demand or application is made in good faith for the punishment of crime, and not for the purpose of collecting a debt or pecuniary mulct, or of removing the alleged fugitive to a foreign jurisdiction with a view to serve him there with civil process.
(c) No demand for the extradition of a person charged with crime in another state shall be recognized by the Governor unless in writing alleging, except in cases arising under subdivision (g) of this section, that the accused was present in the demanding state at the time of the commission of the alleged crime, and that thereafter he fled from the state, and accompanied by a copy of an indictment found, or by information supported by affidavit, in the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate or justice there, together with a copy of any warrant which was issued thereupon; or by a copy of a judgment of conviction or a sentence imposed in execution thereof, together with a statement by the executive authority of the demanding state that the person claimed has escaped from confinement or has broken the terms of his bail, probation or parole. The indictment, information, or affidavit made before the magistrate or justice must substantially charge the person demanded with having committed a crime under the law of that state; and the copy of indictment, information, affidavit, judgment of conviction or sentence must be authenticated by the executive authority making the demand.
(d) When a demand shall be made upon the Governor of this state by the executive authority of another state for the surrender of a person so charged with crime, the Governor may call upon the Attorney General, any prosecuting officer, or the department of public safety, in this state to investigate or assist in investigating the demand, and to report to him the situation and circumstances of the person so demanded, and whether he ought to be surrendered.
(e) When it is desired to have returned to this state a person charged in this state with crime, and such person is imprisoned or is held under criminal proceedings then pending against him in another state, the Governor of this state may agree with the executive authority of such other state for the extradition of such person before the conclusion of such proceedings or his term of sentence in such other state, upon condition that such person be returned to such other state at the expense of this state as soon as the prosecution in this state is terminated.
(f) The Governor of this state may also surrender on demand of the executive authority of any other state any person in this state who is charged in the manner provided in subdivision (b) of section ten of this article, with having violated the laws of the state whose executive authority is making the demand, even though such person left the demanding state voluntarily (involuntarily).
(g) The Governor of this state may also surrender, on demand of the executive authority of any other state, any person in this state charged in such other state in the manner provided in subdivision (c) of this section, with committing an act in this state, or in a third state, intentionally resulting in a crime in the state whose executive authority is making the demand, and the provisions of this article not otherwise inconsistent, shall apply to such cases, even though the accused was not in that state at the time of the commission of the crime, and has not fled therefrom.
(a) If the Governor decides that the demand should be complied with, he shall sign a warrant of arrest which shall be sealed by the Secretary of State with the great seal of this state, and be directed by the Governor to any peace officer or other person whom he may think fit to entrust with the execution thereof. The warrant must substantially recite the facts necessary to the validity of its issuance.
(b) Such warrant shall authorize the peace officer or other person to whom directed to arrest the accused at any time and any place where he may be found within the state and to command the aid of all peace officers or other persons in the execution of the warrant, and to deliver the accused, subject to the provision of this article to the duly authorized agent of the demanding state.
(c) The Governor may recall the warrant of arrest or may issue another warrant whenever he deems proper.
(d) Every such peace officer or other person empowered to make the arrest, shall have the same authority, in arresting the accused, to command assistance therein, as peace officers have by law in the execution of any criminal process directed to them, with like penalties against those who refuse their assistance.
§5-1-9. Hearing after arrest; application for writ of habeas corpus; arrest and confinement of fugitives from another state; bail; persons involved in criminal or civil actions in this state.
(a) No person arrested upon a warrant shall be delivered over to the agent whom the executive authority demanding him or her shall have appointed to receive him or her unless he or she shall first be taken forthwith before a judge of a court of record in this state, who shall inform him or her of the demand made for his or her surrender and of the crime with which he or she is charged, and that he or she has the right to demand and procure legal counsel and if the prisoner or his or her counsel shall state that he or they desire to test the legality of his or her arrest, the judge of the court of record shall fix a reasonable time to be allowed him or her within which to apply for a writ of habeas corpus. When a writ is applied for, notice thereof, and of the time and place of hearing thereon, shall be given to the prosecuting attorney of the county in which the arrest is made and in which the accused is in custody, and to the agent of the demanding state.
(b) Any officer who delivers to the agent for extradition of the demanding state a person in his or her custody under the Governor's warrant, in willful disobedience to subdivision (a) of this section, shall be guilty of a misdemeanor and, on conviction thereof shall be fined not more than $1,000 or be imprisoned not more than six months, or both.
(c) The officer or persons executing the Governor's warrant of arrest, or the agent of the demanding state to whom the prisoner may have been delivered, may, when necessary, confine the prisoner in any city, county or regional jail; and the keeper of the jail shall receive and safely keep the prisoner until the officer or person having charge of him or her is ready to proceed on his or her route, the officer or person being chargeable with the expense of keeping.
The officer or agent of a demanding state to whom a prisoner may have been delivered following extradition proceedings in another state, or to whom a prisoner may have been delivered after waiving extradition in the other state, and who is passing through this state with such a prisoner for the purpose of immediately returning the prisoner to the demanding state may, when necessary, confine the prisoner in any city, county or regional jail; and the keeper of the jail shall receive and safely keep the prisoner until the officer or agent having charge of him or her is ready to proceed on his or her route, the officer or agent, however, being chargeable with the expense of keeping: Provided, That the officer or agent shall produce and show to the keeper of the jail satisfactory written evidence of the fact that he or she is actually transporting a prisoner to the demanding state after a requisition by the executive authority of the demanding state. The prisoner may not be entitled to demand a new requisition while in this state.
(d) Whenever any person within this state shall be charged on the oath of any credible person before any judge or magistrate of this state with the commission of any crime in any other state and, except in cases arising under subdivision (g), section seven of this article, with having fled from justice, or with having been convicted of a crime in that state and having escaped from confinement, or having broken the terms of his or her bail, probation or parole, or whenever complaint has been made before any judge or magistrate in this state setting forth on the affidavit of any credible person in another state that a crime has been committed in the state and that the accused has been charged in the state with the commission of the crime, and, except in cases arising under subdivision (g), section seven of this article, has fled from justice, or with having been convicted of a crime in that state and having escaped from confinement, or having broken the terms of his or her bail, probation or parole, and is believed to be in this state, the judge or magistrate shall issue a warrant directed to any peace officer commanding him or her to apprehend the person named therein, wherever he or she may be found in this state, and to bring him or her before the same or any other judge, magistrate, or court who or which may be available in or convenient of access to the place where the arrest may be made, to answer the charge or complaint and affidavit, and a certified copy of the sworn charge or complaint and affidavit upon which the warrant is issued shall be attached to the warrant.
(e) The arrest of a person may be lawfully made also by any peace officer, or a private person, without a warrant, upon reasonable information that the accused stands charged in the courts of a state with a crime punishable by death or by imprisonment for a term exceeding one year, but when so arrested the accused must be taken before a judge or magistrate with all practicable speed and complaint must be made against him or her under oath setting forth the ground for the arrest as in the preceding section and thereafter his or her answer shall be heard as if he or she had been arrested on a warrant. Correctional officers may, additionally, make complaint against persons in their custody for whom they have a reasonable belief stand accused of crimes, punishable by death or confinement for a term exceeding one year, in the courts of another state.
(f) If from the examination before the judge or magistrate it appears that the person held is the person charged with having committed the crime alleged and, except in cases arising under subdivision (g), section seven of this article, that he or she has fled from justice, the judge or magistrate must, by a warrant reciting the accusation, commit him or her to the county or regional jail for a time not exceeding thirty days, and specified in the warrant, as will enable the arrest of the accused to be made under a warrant of the Governor on a requisition of the executive authority of the state having jurisdiction of the offense, unless the accused give bail as provided in subdivision (g) of this section, or until he or she shall be legally discharged.
(g) Unless the offense with which the prisoner is charged is shown to be an offense punishable by death or life imprisonment under the laws of the state in which it was committed, a judge or magistrate in this state may admit the person arrested to bail by bond, with sufficient sureties, and in a sum as he or she considers proper, conditioned for his or her appearance before him or her at a time specified in the bond, and for his or her surrender, to be arrested upon the warrant of the Governor of this state.
(h) If the accused is not arrested under warrant of the Governor by the expiration of the time specified in the warrant or bond, a judge or magistrate may discharge him or her or may recommit him or her for a further period not to exceed sixty days, or a judge or magistrate may again take bail for his or her appearance and surrender as provided in subdivision (g) of this section, but within a period not to exceed sixty days after the date of the new bond.
(i) If the prisoner is admitted to bail, and fails to appear and surrender himself or herself according to the conditions of his or her bond, the judge, or magistrate, by proper order, shall declare the bond forfeited and order his or her immediate arrest without warrant if he or she is within this state. Recovery may be had on a bond in the name of the state as in the case of other bonds given by the accused in criminal proceedings within this state.
(j) If a criminal prosecution has been instituted against the person under the laws of this state and is still pending, the Governor, in his or her discretion, either may surrender him or her on demand of the executive authority of another state or hold him or her until he or she has been tried and discharged or convicted and punished in this state: Provided, That any person under recognizance to appear as a witness in any criminal proceeding pending in this state may in the discretion of the Governor be surrendered on demand of the executive authority of another state or be held until criminal proceeding pending in this state has been determined: Provided, however, That any person who was in custody upon any execution, or upon process in any suit, at the time of being apprehended for a crime charged to have been committed without the jurisdiction of this state, may not be delivered up without the consent of the plaintiff in an execution or suit, until the amount of the execution has been paid, or until the person shall be otherwise discharged from the execution or process.
(k) The guilt or innocence of the accused as to the crime for which he or she is charged may not be inquired into by the Governor or in any proceeding after the demand for extradition accompanied by a charge of crime in legal form as provided in this article has been presented to the Governor, except as it may be involved in identifying the person held as the person charged with the crime.
(a) Whenever the Governor of this state shall demand a person charged with crime or with escaping from confinement, or breaking the terms of his bail, probation, or parole in this state, from the executive authority of any other state, or from the chief justice or an associate justice of the supreme court of the District of Columbia authorized to receive such demand under the laws of the United States, he shall issue a warrant under the great seal of this state affixed thereon by the Secretary of State, to some agent, commanding him to receive the person so charged if delivered to him and to convey him to the proper officer of the county in this state in which the offense was committed.
(b) When the return to this state of a person charged with crime in this state is required, the prosecuting attorney shall present to the Governor his written application for a requisition for the return of the person charged, in which application shall be stated the name of the person so charged, the crime charged against him, the approximate time, place and circumstances of its commission, the state in which he is believed to be, including the location of the accused therein, at the time the application is made, and certifying that, in the opinion of the said prosecuting attorney, the ends of justice require the arrest and return of the accused to this state for trial and that the proceeding is not instituted to enforce a private claim.
(c) When the return to this state is required of a person who has been convicted of a crime in this state and has escaped from confinement or broken the terms of his bail, probation or parole, the prosecuting attorney of the county in which the offense was committed, the Parole Board, or the warden of the institution or sheriff of the county, from which escape was made, shall present to the Governor a written application for a requisition for the return of such person, in which application shall be stated the name of the person, the crime of which he was convicted, the circumstances of his escape from confinement or of the breach of the terms of his bail, probation or parole, the state in which he is believed to be, including the location of the person therein at the time application is made.
The application shall be verified by affidavit, shall be executed in duplicate and shall be accompanied by two certified copies of the indictment returned, or information and affidavit filed, or of the complaint made to the judge or justice, stating the offense with which the accused is charged, or the judgment of conviction or of the sentence. The prosecuting attorney, Parole Board, warden or sheriff may also attach such further affidavits and other documents in duplicate as he shall deem proper to be submitted with such application. One copy of the application, with the action of the Governor indicated by endorsement thereon, and one of the certified copies of the indictment, complaint, information, and affidavits, or of the judgment of conviction or of the sentence shall be filed in the office of the Secretary of State, to remain of record in that office. The other copies of all papers shall be forwarded with the Governor's requisition.
§5-1-11. Immunity from service of civil process; waiver of extradition proceedings; nonwaiver of rights of state; trial on other charges after return.
(a) A person brought into this state by, or after waiver of, extradition based on a criminal charge, shall not be subject to service of personal process in civil actions until he has been convicted in the criminal proceedings, or, if acquitted, until he has had reasonable opportunity to return to the state from which he was extradited.
(b) Any person arrested in this state charged with having committed any crime in another state or alleged to have escaped from confinement, or broken the terms of his bail, probation or parole may waive the issuance and service of the warrant provided for in subsections (a) and (d), section eight of this article, and all other procedure incidental to extradition proceedings, by executing or subscribing in the presence of a judge of any court of record, within this state a writing which states that he consents to return to the demanding state: Provided, That before such waiver shall be executed or subscribed by such person it shall be the duty of such judge to inform such person of his rights with respect to the issuance and service of a warrant of extradition and with respect to obtaining a writ of habeas corpus as provided for in subsection (a), section nine of this article.
If and when such consent has been duly executed it shall forthwith be forwarded to the Office of the Governor of this state and be filed by him in the Office of the Secretary of State. The judge shall direct the officer having such person in custody to deliver forthwith such person to the duly accredited agent or agents of the demanding state, and shall deliver or cause to be delivered to such agent or agents a copy of such consent: Provided, That nothing in this subdivision shall be deemed to limit the rights of the accused person to return voluntarily and without formality to the demanding state, nor shall this waiver procedure be deemed to be an exclusive procedure or to limit the powers, rights, or duties of the officers of the demanding state or of this state.
(c) Prior Waiver of Extradition. Notwithstanding any other provision of this code, a law-enforcement or correction agency in the State of West Virginia holding a person who is charged by another jurisdiction with a violation of his or her terms of probation, parole, bail or other form of conditional release in another jurisdiction which is demanding the return of such person shall immediately deliver the person to the duly authorized agent of the demanding state, and without the requirement of a Governor's warrant, if such person has previously executed a waiver of extradition as a condition of his or her current terms of probation, parole, bail or other form of conditional release in the demanding state and upon receipt of the following documentation from the demanding state:
(1) A certified copy of the previously executed waiver of extradition being held by the officials in the demanding state or an electronically or electromagnetically transmitted facsimile thereof;
(2) A certified copy of an order or warrant from the demanding state seeking the return of the person or an electronically or electromagnetically transmitted facsimile thereof; and
(3) A photograph, fingerprints or other evidence which identifies the person held by the law-enforcement or correction agency as the person who signed the waiver of extradition and who is named in the order or warrant, or an electronically or electromagnetically transmitted facsimile thereof.
(d) Nothing in this article contained shall be deemed to constitute a waiver by this state of its right, power or privilege to try such demanded person for an offense committed within this state, or of its right, power or privilege to regain custody of such person by extradition proceedings or otherwise for the purpose of trial, sentence or punishment for any offense committed within this state, nor shall any proceedings had under this article which result in, or fail to result in, extradition, be deemed a waiver by this state of any of its rights, privileges or jurisdiction in any way whatsoever.
(e) After a person has been brought back to this state by, or after waiver of, extradition proceedings, he may be tried in this state for any offense which he may be charged with having committed here as well as that specified in the requisition for his extradition.
(f) Nothing in this section shall be construed to limit the authority of the Governor, at his or her own instance, to refuse to honor an extradition demand from another jurisdiction.
When the punishment of the crime shall be the confinement of the criminal in the penitentiary, expenses incurred shall be paid from funds available to the Division of Corrections. In all other cases such expenses shall be paid out of the county treasury of the county wherein the crime is alleged to have been committed.
The complainant in each case is answerable for all the actual costs and charges, and for the support in prison of any person so committed; and, if the charge for his or her support in prison shall not be paid when demanded, the jailer may discharge such person from prison.
The provisions of sections seven to thirteen of this article shall be so interpreted and construed as to effectuate its general purposes to make uniform the law of those states which enact such provisions, and if any provision thereof, or the application thereof to any person or circumstances, is held invalid, such invalidity shall not affect other provisions or applications thereof which can be given effect without the invalid provision or application, and to this end the provisions thereof are declared to be severable.
Sections seven to thirteen of this article may be cited as the "Uniform Criminal Extradition Act."
§5-1-14. Rewards for arrest of criminals or in case of assault on or assassination of judge; employment of detectives.
The Governor may offer a reward for apprehending and securing any person convicted of an offense or charged therewith who shall have escaped from prison, or for apprehending and securing any person charged with an offense who, there is reason to fear, cannot be arrested in the common course of proceeding. And in case a judge of the Supreme Court of Appeals, of a circuit court, of a criminal court or an intermediate court, or of any court of record in this state, shall be assassinated, or his assassination attempted, or a felonious assault be committed upon him and the assassin or person making such assault shall not at once be apprehended and arrested, the Governor shall forthwith offer such a reward, not exceeding $10,000, as in his discretion will result in the arrest of such criminal. But no such reward shall be paid to any sheriff or other officer who may arrest such person by virtue of any process in his hands to be executed. And the Governor may employ any person to aid in the detection, arrest and prosecution of one accused with the assassination or attempted assassination or felonious assault upon a judge of the Supreme Court of Appeals, of a circuit court, of a criminal court, of an intermediate court, or of any other court of record in this state, and agree to pay, and pay, to such person or persons so employed, such sum or sums, not exceeding $10,000, as in the discretion of the Governor may seem to be reasonable. And the Governor may employ any person to aid in the detection of persons charged with or suspected of crime, such persons so employed in either case to be paid out of the contingent fund at the Governor's disposal.
Every officer to whom any order or warrant of the Governor is directed shall make return thereof to the Secretary of State, who shall preserve the same in his office.
Sentences; reprieves; paroles; pardons.
The Governor shall have power to remit fines and penalties, in such cases and under such regulations as now are or may be prescribed by law; to commute capital punishment, and, except where the prosecution was carried on by the House of Delegates, to grant reprieves, paroles and pardons, after conviction; but he shall record in the journal of executive proceedings and communicate to the Legislature, at its next session, the particulars of every case of fine or penalty remitted, of punishment commuted, and of reprieve, parole or pardon granted, with his reasons therefor. In any case wherein the Governor has power to grant a pardon, instead of granting the same unconditionally, he may, after sentence, grant it upon such conditions ashe may deem proper, with the assent of the person sentenced; and, for the purpose of carrying into effect such conditional pardon, the Governor may issue his warrant directed to any proper officer, who shall obey and execute it, instead of the sentence originally awarded. In any case in which the Governor shall exercise the power conferred on him by the Constitution to commute capital punishment, he may issue his order to the warden of the penitentiary, requiring him to receive and confine (and the warden shall receive and confine) in the penitentiary, according to such order, the person whose punishment is commuted. To carry into effect any commutation of punishment, the Governor may issue his warrant directed to any proper officer, who shall obey and execute the same.
(a) Any person who has received a full and unconditional pardon from the Governor, pursuant to the provisions of section eleven, article VII of the Constitution of West Virginia and section sixteen of this article, may petition the circuit court in the county where the conviction was had to have the record of such conviction expunged. The petition shall be served upon the prosecuting attorney of the county where the petition was filed. Any person petitioning the court for an order of expungement shall publish a notice of the time and place that such petition will be made, which notice shall be published as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code and the publication area for such publication shall be the county where the petition is filed. The circuit court, upon verification of the act of pardon and after a hearing to determine that good cause exists, may enter an order directing that all public record of the petitioner's conviction be expunged. For the purposes of this section, "public record" or "record" does not include the records of the Governor, the Legislature or the Secretary of State that pertain to a grant of pardon. Such records that pertain to a grant of pardon are not subject to an order of expungement. The amendment to this section during the fourth extraordinary session of the Legislature in the year 2009 is not for the purpose of changing existing law, but is intended to clarify the intent of the Legislature as to existing law regarding expungement.
(b) The record expunged pursuant to the provisions of this section may not be considered in an application to any educational institution in this state or an application for any licensure required by any professional organization in this state.
(c) No person shall be eligible for expungement pursuant to this section until one year after having been pardoned.
(d) No person shall be eligible for expungement pursuant to this section until five years after the discharge of his or her sentence upon the conviction for which he or she was pardoned.
(e) No person shall be eligible for expungement of a record of conviction of first degree murder, as defined in section one, article two, chapter sixty-one of this code; treason, as defined in section one, article one of said chapter; kidnapping, as defined in section fourteen-a, article two of said chapter; or any felony defined in article eight-b of said chapter.
The Governor may remit in whole or in part any fine or penalty assessed or imposed by a court of record, court-martial, or other authority, only in the following instances:
(a) When judgment has been rendered against any person for a contempt of court, other than for nonperformance of, or disobedience to, some order, decree or judgment; or when any fine or penalty is imposed by the sentence of a court-martial, the Governor may pardon the offense and remit the fine or penalty, either in whole or in part;
(b) When any fine has been imposed, if the same or any part thereof, when collected, would be payable to the state, and has not been so paid, the Governor may, on good cause shown by affidavit, or on the recommendation of the judge or a majority of the jury who tried the case, remit so much as is payable to the state and has not been so paid, or a less amount, either unconditionally, or upon such terms and conditions as may seem to him right and proper.
Out of the sum annually appropriated as a civil contingent fund, there may be paid all expenses incurred in the execution of any law for which there is no special appropriation, and any other sums which the Governor may deem necessary or proper. No payment shall be made out of the civil contingent fund except on the requisition of the Governor directed to the Auditor.
The Governor may raise, from time to time, by temporary loans, not having over eighteen months to run, nor bearing a greater interest than 2¢ per $100 per day, so much as may be needed to supply the wants of the treasury: Provided, That the Governor may, on or before June 30, 1989, issue notes, revenue bonds, certificates or other evidences of indebtedness of the state as provided in this section to redeem previous liabilities for the ordinary expenses of the state. Such notes, revenue bonds, certificates or other evidences of indebtedness may not exceed in the aggregate the principal sum of $135 million and shall provide for repayment of principal and interest in full no later than June 30, 1992.
The issuance of such notes, revenue bonds, certificates or other evidences of indebtedness shall be authorized by an executive order, and such notes, revenue bonds, certificates or other evidences of indebtedness shall be payable in such medium of payment and at such place or places, within or without the state, and may have such other terms and conditions as the Governor determines. Such notes, revenue bonds, certificates or other evidences of indebtedness shall be signed by the Governor, under the great seal of the state, and attested by the Secretary of State. The Governor and Secretary of State may sign and attest such notes, revenue bonds, certificates or other evidences of indebtedness by facsimile signature. Such notes, revenue bonds, certificates or other evidences of indebtedness may be issued at such interest rate or rates as the Governor deems reasonable and necessary to serve the best interests of the state and to enhance their marketability. Such notes, revenue bonds, certificates or other evidences of indebtedness shall be sold in such manner and on such terms and conditions as the Governor may determine to be in the best interests of the state. Any revenue bonds issued hereunder shall be in registered form.
The Governor may enter into trust agreements with banks or trust companies, within or without the state, and in such trust agreements or the executive order authorizing the issuance of such notes, revenue bonds, certificates or other evidences of indebtedness he may enter into valid and legally binding covenants with the holders of such notes, revenue bonds, certificates or other evidences of indebtedness as to the custody, safekeeping and disposition of the moneys within the "Fiscal Responsibility Fund" hereinafter created and as to any other matters or provisions which are deemed necessary or advisable by the Governor to serve the best interests of the state and to enhance the marketability of such notes, revenue bonds, certificates or other evidences of indebtedness. The Governor may contract for the provision of such professional and technical services as he may deem necessary or advisable in connection with the issuance of such notes, revenue bonds, certificates or other evidences of indebtedness, including without limitation accounting, actuarial, consulting, financial and legal services. The fees and expenses of such professionals and any and all other costs associated with the issuance of such notes, revenue bonds, certificates or other evidences of indebtedness shall be payable from the proceeds of such issuance.
Such notes, revenue bonds, certificates or other evidences of indebtedness shall be and constitute negotiable instruments under the Uniform Commercial Code of this state; shall, together with the interest thereon, be exempt from all taxation by the State of West Virginia, or by any county, school district, municipality or political subdivision thereof; and such notes, revenue bonds, certificates or other evidences of indebtedness shall not be deemed to be general obligations or debts of the state within the meaning of the Constitution of the State of West Virginia, and the credit or the taxing power of the state shall not be pledged therefor, but such notes, revenue bonds, certificates or other evidences of indebtedness shall be payable only from the revenue pledged therefor as provided in this section.
The proceeds of any indebtedness issued hereunder shall be paid into a special fund hereby created in the State Treasury named "The Fund for Redemption of Previous Liabilities". The Governor may make disbursements from this fund to pay the reasonable fees, expenses and costs associated with the issuance of the indebtedness authorized by this section, and such other disbursements as he deems necessary to redeem previous liabilities for the ordinary expenses of the state.
There is hereby created in the State Treasury a special fund named the "Fiscal Responsibility Fund" into which shall be paid on and after July 1, 1989, the amounts as and when specified in section thirty, article fifteen, chapter eleven of this code. All moneys deposited in said fund are pledged to the repayment of principal and interest on any notes, revenue bonds, certificates or other evidences of indebtedness issued pursuant to this section. A lien on the fund shall exist in favor of the holders of any notes, revenue bonds, certificates or other evidences of indebtedness issued under this section to the extent of such indebtedness. Any moneys not needed for repayment of principal and interest on and costs associated with the notes, revenue bonds, certificates or other evidences of indebtedness authorized by this section may be used to repay principal and interest on moneys previously transferred from the occupational pneumoconiosis fund pursuant to section eight-a, article four-b, chapter twenty-three of this code. Repayment to the occupational pneumoconiosis fund, if any, shall be made into the special account created in the State Treasury by said section eight-a. Any amounts remaining in the "Fiscal Responsibility Fund" after provisions for repayment of indebtedness issued pursuant to this section and not otherwise used for repayment of moneys previously transferred from the occupational pneumoconiosis fund shall be transferred to the General Revenue Fund of this state on or before August 1, 1992.
§5-1-20. Reports to the Governor; form and contents; transmission to the Legislature; special reports.
(a) The secretaries of the executive department and the officers of all public institutions of the state shall make an annual report to the Governor as soon as possible after the close of each fiscal year, notwithstanding any other provision of law to the contrary.
(b) All state officers, boards, commissions, departments and institutions required by law to make reports to the Governor, the Legislature or any administrative board or state official shall cover fiscal year periods.
(c) Annual reports shall be submitted in typewritten form, any legible form produced by mechanical means, on electronic media, to be filed in the same manner as a printed annual report, or transmitted electronically via the Internet. Any annual report filed in an electronic format shall be considered as having satisfied the filing requirements.
(d) The Governor shall by executive order prescribe the general contents of the reports to be submitted to him or her. The form and format of the reports shall be as prescribed in this code.
(e) The Governor shall transmit, and may do so electronically, copies of the report to the Legislature and provide a copy of all such reports with the Division of Archives and History where the reports shall be kept as permanent records.
(f) All annual reports to the Legislature shall be submitted, and may do so electronically, to the Legislative Librarian.
(g) The Governor may at any time require information in writing, under oath, from any officer, board, department or commission of the executive department or the principal officer or manager of any state institution, upon any subject relating to the condition, management and expense of their respective offices or institutions.
Of the biennial messages submitted to the Legislature by the Governor, and any documents which he may deem essential to accompany the same, he shall cause a sufficient number to be printed, before the beginning of the session, if practicable, to provide the Clerk of the Senate and the Clerk of the House of Delegates with at least four copies for each member of their respective houses of the Legislature, and so as to transmit one copy to the Governor of each of the other states, one to the Secretary of State of the United States, and three to the Librarian of Congress, whereof one shall be for the library and one for each house of Congress; the Governor may require such additional copies to be printed as he may deem necessary, which additional copies shall be distributed as he may direct. The Governor shall also transmit, to the Governor of each of the other states, to the Secretary of State of the United States and the Librarian of Congress, copies of the journal of the Senate and of the House of Delegates, in the number and for the use and disposition as herein provided for copies of the biennial messages.
§5-1-22. Vacancies in offices filled by appointment of Governor; Senate action; bond requirements; filling vacancies in other appointive offices.
(a) In case of a vacancy, during the recess of the Senate, in any office, which vacancy the Governor is authorized to fill by and with the advice and consent of the Senate, the Governor shall, by appointment within ninety days, fill such vacancy until the next meeting of the Senate, when the Governor shall submit to the Senate a nomination to fill such vacancy and, upon confirmation of such nomination by the Senate, by a vote of a majority of all the members elected to the Senate, taken by yeas and nays, the person so nominated and confirmed shall hold said office during the remainder of the term for which his or her predecessor in office was appointed, and until his or her successor shall be appointed and qualified. No person whose nomination for office has been rejected by the Senate shall again be nominated for the same office during the session in which his or her nomination was so rejected, unless at the request of the Senate, nor shall the person be appointed to the same office during the recess of the Senate. No appointee who resigns from any such office prior to confirmation, or whose name has not been submitted for confirmation while the Senate is in session, shall be eligible, during the recess of the Senate, to hold any office the nomination for which must be confirmed by the Senate.
(b) Any person appointed to temporarily fill a vacancy shall possess the qualifications required by law for that vacant position, and may only remain in the vacated position for a maximum of ninety days.
(c) If an employee of a state agency is temporarily appointed to fill a vacancy, the employee may fill such vacancy without resigning from the position he or she ordinarily holds: Provided, that the employee’s compensation shall be the greater of:
(1) The employee’s regular salary in his or her usual position; or
(2) The salary for the office the employee temporarily fills.
(d) If a vacancy is temporarily filled by a person not otherwise employed by any agency of the State of West Virginia, then that person shall be compensated at a rate no greater than that of the salary for the office that person temporarily fills.
(e) The bond, if any, required by law to be given by any officer so temporarily appointed by the Governor, shall be in such penalty as is required by law of the incumbent of such office.
(f) Any vacancy in any other office filled by appointment, or in any office hereafter created to be filled by appointment, shall be filled by the same person, court or body authorized to make appointment to such office for the full term thereof.
§5-1-23. Securing congressional appropriations when Legislature not in session; powers of designated state agency; transfers of appropriation items by Governor.
The Governor is hereby authorized and empowered to take whatever action not contrary to law that he may find proper and necessary to enable the state to receive the benefits of appropriations which may be made by the Congress of the United States while the Legislature is not in session. A department, institution or agency of the state government designated by Congress, in such event and with the approval of the Governor, shall have authority to do all acts not contrary to law which may be necessary for enforcement with the requirements and conditions for the receipt of such federal appropriations. The Governor shall have authority to order transfers within the items of appropriations for such department, institution or agency as may be necessary to effectuate the purpose of this section (and not contrary to law).
The Governor, if he deem such action necessary, may request the Attorney General to appoint an assistant Attorney General, who shall perform, under the supervision and direction of the Attorney General, such duties as may be required of him by the Governor. The Attorney General, in pursuance of such request, may select and appoint an assistant Attorney General, to serve during the will and pleasure of the Attorney General, and the salary of such assistant shall be paid out of any funds made available for that purpose by the Legislature to the office of the Governor.
Daylight saving time shall be the statewide official time, commencing at two o’clock antemeridian on the second Sunday of March and terminating at two o’clock antemeridian on the first Sunday of November; this time shall apply to all public schools, institutions of higher learning, agencies, departments and political subdivisions of the state.
§5-1-26. Fuel emergency; power of the Governor to declare an emergency; duties of the Governor with respect to such emergency; assistance of other state agencies and local law-enforcement agencies; injunctive relief; penalties; jurisdiction.
(a) The Legislature hereby finds and declares that the purposes of this section are to protect and promote the public peace, safety, economy, revenue, health and welfare and interest of the people of this state and, to do so, it is necessary to ensure free and competitive access to gasoline and special fuel for and to the users of gasoline or special fuel in this state during the time of any fuel emergency as declared by the Governor pursuant to the power and authority herein granted.
(b) As used herein or as used in any proclamation, order, rule or regulation issued by the Governor pursuant to this section, unless the context requires a different meaning, the terms or phrases "actual metered gallons," "distributor," "producer," "gallon," "gasoline," "importer," "person," "petroleum carrier," "purchase," "receive," "retail dealer," "sale," "special fuel," "supply tank," "tank wagon" and "user" shall have the same meanings ascribed to those terms or phrases in section two, article fourteen, chapter eleven of this code.
(c) When the public peace, safety, economy, revenue, health, welfare or interest of the people of this state is impaired or imperiled because of a shortage of gasoline or special fuel, and the Governor so finds, the Governor is hereby empowered and authorized and it shall be his duty to issue a proclamation declaring the existence of a fuel emergency in this state or any part thereof. Upon the issuance of such proclamation by the Governor, the Governor is hereby granted plenary power and authority to issue, amend, suspend or revoke orders, rules and regulations to:
(1) Allocate or distribute gasoline or special fuel to the extent permitted by any federal law relating to the allocation or distribution of gasoline or special fuel and rules and regulations promulgated thereunder or to the extent permitted by the appropriate federal agency.
(2) Control, restrict and regulate the sale by distributors, producers, importers and retail dealers of gasoline and special fuel to users by any appropriate means including, but not limited to, the establishment of quotas, rationing, specifications that certain users may purchase gasoline or special fuel only on certain days, and other conditions upon the purchase of gasoline or special fuel to the extent permitted by any federal law relating to the allocation or distribution of gasoline or special fuel and rules and regulations promulgated thereunder or to the extent permitted by the appropriate federal agency.
Any such order, rule or regulation shall have such statewide, regional, county or other area application, as the Governor shall specify therein. Whenever the nature and severity of a fuel emergency varies from area to area in the state, the Governor shall have plenary power and authority, within the limitations of subdivisions (1) and (2) above, to establish different allocation or distribution formulae, controls, restrictions and regulations for different areas of the state at different times.
(d) Any orders, rules or regulations issued pursuant to this section shall be valid only during the period of any such fuel emergency and may be issued or promulgated without complying with the provisions of chapter twenty-nine-a of this code: Provided, That a copy of every such order, rule or regulation shall be filed in the office of the Secretary of State before the same is effective and the Secretary of State shall, within five days thereafter, forward a certified copy thereof to the clerk of the county court of each county and every such clerk shall forthwith admit such order, rule or regulation to record in the miscellaneous records of the county court kept in the office of each such clerk, but such filing in the office of the Secretary of State shall alone constitute constructive notice to any person affected by such order, rule or regulation: Provided, however, That the county court of each county shall, when the first such order, rule or regulation is admitted to record, forthwith cause to be published a notice to the effect that such order, rule or regulation is, and that all further orders, rules and regulations or record copies thereof shall be, available for inspection in the office of the county clerk of such county. Such notice shall be published as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be such county. A copy of any such order, rule or regulation certified by the Secretary of State shall be admissible in any court in this state as proof of the contents thereof.
(e) The Governor is hereby granted plenary power and authority to enforce any order, rule or regulation issued pursuant to this section and, in so doing, may secure the assistance of any state agency, the Attorney General or his designate, the prosecuting attorneys of the several counties and any state or local law-enforcement agencies or officers. Such persons shall assist the Governor in enforcing the provisions of any such order, rule or regulation so issued and promulgated by the Governor when called upon to do so by the Governor. The Governor may petition any circuit court of this state for the issuance of a temporary restraining order or injunction or for any other remedy, as may be appropriate, to compel any person to comply with any such order, rule or regulation, and it shall be the duty of the Attorney General and the prosecuting attorneys of the various counties to assist and cooperate with the Governor in obtaining such relief. No injunction bond shall be required, and in the event of an appeal to the West Virginia Supreme Court of Appeals, the filing of such appeal shall not stay enforcement of the final judgment of the circuit court enforcing any such order, rule or regulation.
(f) Whenever it appears to the Governor that there exists a serious, direct and immediate threat to the health and safety of any persons in this state because of the failure or refusal of a producer or distributor to comply, in a timely manner, with an order, rule or regulation issued pursuant to the provisions of subsection (c) of this section, the Governor shall have the authority to distribute or cause to have distributed from the supplies of gasoline or special fuel owned, retained or possessed by such producer or distributor a sufficient amount of gasoline or special fuel as may be required to alleviate any such emergency. Such producer or distributor shall be compensated by the user, consumer or retail dealer receiving such gasoline or special fuel at the then existing average market value, either retail value or wholesale value, as the case may be: Provided, That there shall be deducted from such compensation the amount necessary to pay for the cost of distribution of such gasoline or special fuel: Provided, however, That the Governor shall be required to serve written notice of his intent to exercise the powers granted by this subsection to the parties involved: Provided further, That upon the issuance of such notice, the Governor shall cause to be initiated those legal proceedings relevant to the enforcement of any order, rule or regulation as required by and hereinbefore set out in subsection (e) of this section: And provided further, That such order, rule or regulation issued by the Governor shall not conflict with or be contrary to any federal law relating to the allocation or distribution of gasoline or special fuel and rules and regulations promulgated thereunder or to any power granted the Governor by any federal agency.
(g) Any producer or distributor violating any provision of any such order, rule or regulation of the Governor issued or promulgated pursuant to this section, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $100 nor more than $25,000, or imprisoned in the county jail for not more than one year, or both fined and imprisoned. Any retail dealer violating any provision of any such order, rule or regulation of the Governor issued or promulgated pursuant to this section, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $25 nor more than $100. Each day or part thereof that any such violation shall take place, or continue to take place, shall be deemed to constitute a distinct and separate offense and shall be punishable accordingly.
(h) When the Governor determines that any such fuel emergency no longer exists, he shall issue a proclamation terminating all orders, rules or regulations issued pursuant to the provisions of this section.
(i) The provisions of this section shall expire on July 1, 1974.
When any law-enforcement officer employed by the state or any of its political subdivisions dies while on active duty or after being honorably discharged or honorably retired, upon the request of next of kin, the state shall honor the officer by providing a state flag, at no cost, for draping the coffin at the funeral service of the deceased officer. The superintendent of the West Virginia state police or his or her designee shall upon request provide the flag upon verifying the deceased's service.
(a) On and after February 1, 2005, bonds may not be issued or refunded by the State of West Virginia or any of its agencies, boards or commissions without the express written direction of the Governor, if:
(1) The ultimate user of the proceeds of the bonds is the State of West Virginia or any of its agencies, boards, commissions or departments; or
(2) The issuance or refunding of the bonds implicates the state’s credit rating.
(b) Prior to any state agency, board or commission participating in any formal presentation to any nationally recognized rating agency, with respect to the proposed issuance or refunding of bonds where the ultimate user of the proceeds of the bonds is the State of West Virginia or any of its agencies, boards, commissions or departments, or the issuance or refunding of the bonds implicates the state’s credit rating, the chair or director of the state agency, board or commission shall provide written notice to the Governor, the President of the Senate and the Speaker of the House of Delegates of the date, time and place of the formal presentation at least ten days in advance.
(c) All bond sale requirements established in this code shall apply unless contrary to the provisions of this section.
§5-1-29. Reciprocity agreements to establish regulations, licensing requirements and taxes for small businesses in contiguous states and the District of Columbia doing business in West Virginia.
(a) The Governor is hereby authorized to enter into and renew reciprocity agreements with the governors and other appropriate state governmental agencies from states that share contiguous borders with this state, and the District of Columbia, to establish regulations, licensing requirements and taxation for small businesses headquartered in this state or contiguous states or the District of Columbia that conduct business in both. In the discretion of the Governor, the Attorney General or secretary of an executive branch department may be delegated and empowered in writing to negotiate and enter into such reciprocity agreements on behalf of the Governor.
(b) Notwithstanding the authority granted in subsection (a) of this section, any reciprocity agreement that impacts or affects taxation, either the receipt or payment thereof, may not be entered into unless and until such agreement is approved by the Legislature by act.
(c) For the purposes of this section, the term “small business” has the same meaning as prescribed under section seven-a, article thirteen-c, chapter eleven of this code.
(a) The Legislature makes the following findings:
(1) Subdivision (12), subsection (d), section fifty-one, article VI of the Constitution of West Virginia authorizes the Legislature to enact laws as are necessary and proper to carry out the purposes of section fifty-one, article VI of the Constitution of West Virginia.
(2) One of the purposes of section fifty-one, article VI of the Constitution of West Virginia is to ensure the solvency and fiscal well-being of the State of West Virginia.
(3) Ensuring payment of the debt service on the notes and bonded indebtedness of the state and its agencies, boards and commissions is necessary and proper to ensure the solvency and fiscal well-being of the State of West Virginia.
(b) If, on June 30 of any year, no budget bill has been enacted and made effective for the next ensuing fiscal year, the Governor shall have plenary power and authority by executive order to direct the scheduled payment of the principal and interest due on bonds or notes of the state or its agencies, boards and commissions.
(c) Upon issuance by the Governor of an executive order pursuant to subsection (b) of this section, the State Auditor and State Treasurer shall take such actions as are necessary to ensure payment of the principal and interest due on the bonds or notes of the state, its agencies, boards and commissions as directed by the Governor.
(d) Any executive order issued pursuant to subsection (b) of this section shall continue in full force and effect until the effective date of the budget bill enacted for the fiscal year beginning July 1