HB 2632 Text

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COMMITTEE SUBSTITUTE
FOR
H. B. 2632
(By Delegates Doyle, Farris,
Fleischauer, Jenkins and Walters )
(Originating in the Committee on the Judiciary)

[March 21, 1997]

A BILL to amend chapter thirty-six of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article eight-a, relating to unclaimed stolen property held by law-enforcement agencies; setting forth definitions; requiring law- enforcement agencies to file reports on unclaimed stolen property with state treasurer; requiring treasurer to evaluate reports and issue responses to law-enforcement agencies; providing for the sale or donation of such property to non-profit organizations; authorizing law- enforcement agencies to retain the proceeds of a public sale of such property conducted by the law-enforcement agency; requiring the treasurer to deposit into the general revenue fund the proceeds of a public sale of such property conducted by the treasurer; authorizing law-enforcement agencies to trade in unclaimed stolen firearms and ammunition of sufficient quality on new weapons and ammunition; requiring that unclaimed stolen firearms and ammunition of poor quality be delivered to the treasurer for destruction; and providing immunity to law-enforcement agencies acting in compliance with this article.

Be it enacted by the Legislature of West Virginia:
That chapter thirty-six of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated eight-a, to read as follows:

ARTICLE 8A. UNCLAIMED STOLEN PROPERTY HELD BY LAW-ENFORCEMENT AGENCIES.

§36-8A-1. Definitions.

For purposes of this article, unless a different meaning clearly appears in the context:
(a) "Chief executive" means the superintendent of the state police; the chief conservation officer of the division of natural resources; the sheriff of any West Virginia county; or the chief of any West Virginia municipal law-enforcement agency.
(b) "Item" means any item of unclaimed stolen property or any group of similar items considered together for purposes of reporting, donation, sale or destruction under this article.
(c) "Law-enforcement agency" means any duly authorized state, county or municipal organization of the state of West Virginia employing one or more persons whose responsibility is the enforcement of laws of the state or any county or municipality thereof: Provided, That neither the Hatfield-McCoy regional recreation authority nor any state institution of higher education may be deemed a law-enforcement agency.
(d) "Nonprofit organization" means: (i) Any nonprofit charitable organization; or (ii) any agency of the state of West Virginia the purpose of which is to provide health, recreational or educational services to citizens of the state of West Virginia.
(e) "Stolen property" means any tangible personal property, including cash and coins, which is confiscated by or otherwise comes into the custody of a law-enforcement agency during the course of a criminal investigation or the performance of any other authorized law-enforcement activity, whether or not the property was or can be proven to have been stolen.
(f) "Treasurer" means the state treasurer or his or her authorized designee for purposes of the administration of this article.
(g) "Unclaimed stolen property" is stolen property:
(1) Which has been held by a law-enforcement agency for at least six months, during which time the rightful owner has not claimed it;
(2) For which the chief executive determines that there is no reasonable likelihood of its being returned to its rightful owner; and
(3) Which the chief executive determines to have no evidentiary value.
§36-8A-2. Unclaimed stolen property reports.
(a) Prior to the first day of September, one thousand nine hundred ninety-seven, and on or before first day of September of each succeeding year, each law-enforcement agency which has unclaimed stolen property in its possession shall file an unclaimed stolen property report with the treasurer which identifies all unclaimed stolen property in its possession at the time the report is filed.
(b) An unclaimed stolen property report shall include the following information with respect to all unclaimed stolen property in the possession of the law-enforcement agency filing it:
(1) A description of each item;
(2) An estimated value for each item;
(3) Whether any non-profit organization has requested that any item be donated to it and whether any non-profit organization might be considered to receive the item as a donation;
(4) The chief executive's recommendation for the disposition of each item; and
(5) If any unclaimed stolen property in the law-enforcement agency's possession consists of firearms or ammunition, the chief executive's determination of whether the firearms or ammunition are of a sufficient quality to be traded in on new weapons or ammunition for the law-enforcement agency.
§36-8A-3. Treasurer's response to unclaimed stolen property report.
Within thirty days of the receipt of an unclaimed stolen property report, the treasurer shall send a response to the law- enforcement agency submitting it. For each item identified in the unclaimed stolen property report except firearms and ammunition which the chief executive determined to be of sufficient quality to trade in on new weapons or ammunition, the treasurer shall either require that it be delivered to the treasurer, authorize the law-enforcement agency to sell it at a public sale, authorize the law-enforcement agency to donate it to a nonprofit organization, or authorize the law-enforcement agency either to sell it at a public sale or to donate it to a non- profit organization. However, the treasurer may not authorize the law-enforcement agency to sell or donate any firearms or ammunition. If the treasurer determines that any item identified in an unclaimed stolen property report is of such value that it should be processed by the treasurer's office, the treasurer shall have the authority to require that the item be delivered to the treasurer.
§36-8A-4. Disposition of unclaimed stolen property other than

firearms and ammunition.

(a) Within ninety days of receipt of the treasurer's response required by section three of this article, the law- enforcement agency shall dispose of all items identified in the treasurer's response in the manner set forth in this section.
(b) If the treasurer's report requires the law-enforcement agency to deliver any item to the treasurer, the chief executive shall cause the item to be so delivered. Within three years after receiving the item from the law-enforcement agency, the treasurer shall sell it to the highest bidder at public sale at a location in the state which in the judgment of the treasurer affords the most favorable market for the property. The treasurer may decline the highest bid and reoffer the property for sale if the treasurer considers the bid to be insufficient. The treasurer need not offer the property for sale if the treasurer considers that the probable cost of sale will exceed the proceeds of the sale. A sale held under this subsection must be preceded by a single publication of notice, at least three weeks before sale, in a newspaper of general circulation in the county in which the property is to be sold.
(c) If the treasurer's response authorizes the law- enforcement agency to sell any item at a public sale, the chief executive shall retain an auctioneer licensed by the state of West Virginia to conduct the sale. The costs or fees incurred will be paid from a fund generated from revenues gained by the sale of such property. The licensed auctioneer shall sell the item to the highest bidder at a location which in the judgment of the chief executive affords the most favorable market for the items. A sale under this subsection must be preceded by a single publication of notice, at least three weeks before the sale, in a newspaper of general circulation in the county in which the property is to be sold. The chief executive shall retain the proceeds of any public sale under this subsection for the use of the law-enforcement agency.
(d) If the treasurer's response authorizes the law- enforcement agency to donate any item to a nonprofit organization, the chief executive shall cause the item to be so donated.
(e) If the treasurer's response authorizes the law- enforcement agency either to sell any item at a public sale or to donate it to a non-profit organization, the chief executive may cause the item either to be sold or donated as provided in this section. However, the chief executive shall first attempt to donate the item as provided in subsection (d) of this section before selling it at a public sale as provided in subsection (c) of this section.
§36-8A-5. Trade-in of unclaimed stolen firearms and ammunition.
(a) If the chief executive determined in the law-enforcement agency's unclaimed stolen property report that any firearms or ammunition in the law-enforcement agency's possession are not of a sufficient quality to be traded in on new weapons or ammunition for the agency, the chief executive shall cause the firearms or ammunition to be delivered to the treasurer for destruction.
(b) If the chief executive determined in the law-enforcement agency's unclaimed stolen property report that any firearms or ammunition in the law-enforcement agency's possession are of a sufficient quality to be traded in on new weapons or ammunition for the agency, the chief executive shall cause the firearms or ammunition to be traded in on new weapons or ammunition. After any such transaction, the law-enforcement agency shall file a report with the treasurer and the state tax department on the transaction.
§36-8A-6. Deposit of funds.
(a) The treasurer shall promptly deposit in the general revenue fund of this state all proceeds of any public sale of unclaimed stolen property conducted by the treasurer under subsection (b), section four of this article.
(b) Before making a deposit to the credit of the general revenue fund, the treasurer may deduct the expenses of the related public sale conducted by the treasurer.
(c) The treasurer may deduct the accumulated expenses incurred in the destruction of unclaimed stolen firearms and ammunition under this article from any deposit made under subsection (a) of this section.
§36-8A-7. Immunity of law-enforcement agencies.
If a law-enforcement agency delivers, sells, or donates any item of unclaimed stolen property in good faith and in accordance with the provisions of this article, the law-enforcement agency and its chief executive, officers and employees involved in the delivery, sale or donation shall be immune from any subsequent claim of a person who purports to be the true owner of the item and who did not claim the item prior to the delivery, sale or donation.

NOTE: The purpose of this bill is to provide for the sale or donation of unclaimed stolen property in the possession of law- enforcement agencies. The bill would require that law- enforcement agencies report on such property to the state treasurer. The treasurer would either require that the property be remitted for sale by the treasurer or authorize the law- enforcement agency to sell it or donate it to a non-profit organization. Any proceeds from the public sale of such property would either be deposited in the state's general revenue fund or be retained by the law-enforcement agency. Law-enforcement agencies complying with the provisions of the article would be entitled to immunity from the claims of the true owner of such property who failed to claim it before its sale or donation under the article.

This is a new article; therefore, underlining and strikethroughs have been omitted.

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