Senate Bill No. 147
(By Senators Craigo, Helmick, Love and Wiedebusch)
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[Introduced February 28, 1997; referred to the Committee
on the Judiciary.]
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A BILL to repeal sections three-b and four, article one, chapter
twenty-five of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to amend and reenact
sections one, three, five and fifteen of said article; to
amend and reenact section one, article five, chapter twenty- eight of said code; to amend and reenact section three,
article one, chapter twenty-nine-a of said code; to amend
article twelve, chapter sixty-two of said code by adding
thereto a new section, designated section fourteen-b; and to
amend and reenact section four, article thirteen of said
chapter , all relating to the division of corrections;
repealing an obsolete section related to the maintenance of
closed correctional facilities; repealing an obsolete and
incorrect section which provides that the commissioner of
corrections shall have charge of the business affairs of various colleges and universities in West Virginia; updating
certain terms; providing the facilities which are governed
by the commissioner of corrections; providing that certain
rulemaking by the division of corrections is subject to the
provisions of the state administrative procedures act;
making clear that the West Virginia penitentiary at
Moundsville has been discontinued and replaced by the Mount
Olive correctional complex, providing that rulemaking by the
parole board is subject to the provisions of the state
administrative procedures act; requiring the filing of rules
with the legislative rule-making and review committee; and
the effect of failure to file the rules by the first day of
July, one thousand nine hundred ninety-seven.
Be it enacted by the Legislature of West Virginia:
That sections three-b and four, article one, chapter twenty- five of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be repealed; that sections one, three,
five and fifteen of said article be amended and reenacted; that
section one, article five, chapter twenty-eight of said code be
amended and reenacted; that section three, article one, chapter
twenty-nine-a of said code be amended and reenacted; and that
section four, article thirteen of said chapter be amended and
reenacted; and, that said chapter be further amended by adding thereto a new section, designated section fourteen-b, all to read as follows:
CHAPTER 25. DIVISION OF CORRECTIONS.
ARTICLE 1. ORGANIZATION AND INSTITUTIONS.
§25-1-1. Office of commissioner of public institutions
abolished; division and commissioner of corrections established; qualifications, oath and bond.
(a) The office of state commissioner of public institutions
is hereby abolished, and, except as otherwise provided in this
chapter, its powers and authority are transferred to the
department division of corrections which is hereby established.
Whenever in this code reference is made to the state commissioner
of public institutions, it shall be construed to mean the
department commissioner of the division of corrections.
(b) The executive and administrative head of the
department
division of corrections shall be a commissioner who shall be
appointed, dismissed and paid in accordance with the provisions
of section two-a, article seven, chapter six of this code.
(c) The commissioner shall take and subscribe to the oath
prescribed by the constitution for public officials and shall
execute an official bond in a penalty of fifteen thousand
dollars, conditioned as required by law. Premiums on
such the
bond shall be paid from appropriations made for the
commissioner's office.
Such The bond shall be approved as to
form by the attorney general and as to sufficiency by the governor, and when fully executed and approved, shall be filed in
the office of the secretary of state.
(d) Nothing
herein contained shall contained in this section
may be construed so as to give the commissioner of corrections
any authority in the administration, management or control of
mental institutions,
heretofore transferred to the department of
mental health by an act of the legislature, regular session, one
thousand nine hundred fifty-seven under the jurisdiction of the
state bureau of public health.
§25-1-3. Institutions managed by commissioner of corrections;
certain institutions transferred to department of health and human resources and state board of health;
establishment of work and study release units; civil service coverage.
(a) The commissioner of corrections shall manage, direct,
control and govern the following penal or correctional
institutions and any others placed under his
or her jurisdiction
or control:
West Virginia Penitentiary at Moundsville;
West Virginia State Prison for Women at Pence Springs;
West Virginia Medium Security Prison at Huttonsville;
West Virginia Industrial Home for Girls at Salem;
West Virginia Industrial Home for Boys at Grafton;
Davis Center (formerly the West Virginia Forestry Camp for
Boys at Davis);
Leckie Center (formerly the West Virginia Forestry Camp for
Boys at Leckie); and
Anthony Center (formerly the Anthony Correctional Center).
Anthony Center;
Davis Center;
Denmar Correctional Center;
Huttonsville Correctional Center;
Mount Olive Correctional Complex;
Northern Regional Jail and Correctional Facility;
Pruntytown Correctional Center; and
West Virginia Industrial Home for Youth.
(b) Jurisdiction of and title to the West Virginia
Children's Home at Elkins are hereby transferred to the
department of health and human resources, which shall be the
custodian of all deeds and other muniments of title to
such the
property and shall cause
such as those which are susceptible of
recordation can be recorded to be recorded in the proper offices.
Notwithstanding any provision of this code to the contrary, the
West Virginia Children's Home shall be managed and controlled by a superintendent appointed by the
commissioner secretary of
the
department of health and human resources.
(c) The commissioner
of corrections is hereby authorized to
establish work and study release units as extensions and
subsidiaries of those
state institutions under his or her control
and authority.
Such These work and study release units may be
coeducational and shall be managed, directed and controlled as
provided for in this article.
(d) The commissioner
of corrections is hereby authorized to
serve as a member of the commission for distribution of surplus
foods and exercise all powers and authority otherwise granted to
him or her in this article to implement the pilot program for
delivery of leftover prepared foods at any institution under his
or her control and supervision, pursuant to section seventeen,
article two, chapter eighteen of this code.
(e) Any person employed by the office of public institutions
who on the effective date of this article is a classified civil
service employee shall, within the limits contained in section
two, article six, chapter twenty-nine of this code, remain in the
civil service system as a covered employee.
§25-1-5. Rules.
(a)
Subject to the provisions of chapter twenty-nine-a of
this code, The state commissioner of
public institutions
corrections is authorized to make rules for the proper execution of his
or her duties and powers.
He shall also have the power to
adopt rules and regulations and for the government of the
institutions named or referred to in section three of this
article.
and for the administration of the financial and
business affairs of the institutions named or referred to in
section four of this article, and shall therein prescribe,
consistent with the provisions of this article, the duties of the
persons connected with the management of such institutions
(b) Notwithstanding any previous filing of any of these
rules with the secretary of state, the commissioner shall, by the
first day of July, one thousand nine hundred ninety-sixeven, file
with the legislative rule-making and review committee a certified
copy of: (i) All rules previously adopted or promulgated by the
division of corrections which are then in force and which have
not previously been submitted to that committee pursuant to
section eleven, article three, chapter twenty-nine-a of this
code; and (ii) all of the division's proposed rules which have
not yet become effective prior to the date of filing with the
rule-making and review committee. These rules and proposed rules
shall conform in format and numbering to the provisions of
section six, article two, chapter twenty-nine-a of this code, and
shall include a designation of each rule as a legislative rule,
interpretive rule or procedural rule.
(c) If the commissioner fails to file a certified copy of any rule or proposed rule in accordance with this section on or
before the first day of July, one thousand nine hundred
ninety-seven, any rule or proposed rule not filed is thereafter
void and unenforceable and will be of no further force and
effect.
When any of the guards, attendants, or other employees in
the institutions mentioned in this section are uniformed, the
state commissioner of public institutions corrections shall
prescribe the design, or designs, of the uniforms, which designs
shall be dissimilar to the design of the uniform worn by the
members of the department of public safety; and, when the
institution is located in, or in close proximity to, a
municipality, no such guard, attendant or other employee shall
wear the cap or caps designed by the commissioner as part of the
uniform, when not actually on duty connected with his employment,
nor shall such municipality adopt for its police officers or
other employees a uniform which is similar in design to the
uniform adopted by the commissioner.
Any person violating the provisions of this article shall be
guilty of a misdemeanor and upon conviction shall be punished by
a fine of not more than ten dollars, or by imprisonment for ten
days, or both.
§25-1-15. Diagnostic and classification divisions.
(a) The commissioner of corrections may establish a diagnostic and classification division within Huttonsville
Correctional Center,
West Virginia penitentiary at Moundsville
Mount Olive Correctional Complex and/ or
the Pruntytown
Correctional Center.
formerly known as the West Virginia
industrial home for boys at Grafton
(b) Notwithstanding any provision of
the this code to the
contrary, all persons committed to the custody of the
commissioner of
the department of corrections
for presentence
diagnosis and classification and all persons sentenced to the
West Virginia penitentiary shall, upon imposition of
such the
commitment or sentence, undergo diagnosis and classification in
a diagnostic and classification division.
located at the
Huttonsville correctional center, the West Virginia penitentiary
at Moundsville, or the Pruntytown correctional center
(c) The diagnostic and classification divisions shall be
maximum security facilities.
Provided, That the However, the
commissioner
of the department of corrections shall be authorized
to provide, at his
or her option, classification and diagnostic
services for female offenders through contract with federal
correctional institutions, and
to provide diagnostic and
classification services for youthful offenders at a youth center
operated under the authority of the
department division of
corrections.
Provided, however, That nothing In these cases,
the facilities need not be maximum security.
(d) Nothing contained
herein shall in this section may
operate to conflict with or interfere with predisposition
diagnostic procedures for juveniles contained in chapter
forty-nine of this code.
(e) Nothing
contained herein shall in this section may be
construed to authorize the establishment of a diagnostic and
classification division upon the grounds of the Weston State
Hospital or in a regional jail operated by the regional jail and
prison authority.
§28-5-1. Continuation; management; property.
(a) The West Virginia Penitentiary, heretofore established
and located in Marshall Ccounty,
has been discontinued. shall be
continued, and shall be managed, directed and controlled as
provided in article one, chapter twenty-five, of this code The
lot of ground situated near Moundsville in
said county of
Marshall
Ccounty, containing about ten acres, heretofore selected
by the board of public works as a site for the penitentiary,
under an act of the Legislature passed February nineteenth,
eighteen hundred and sixty-six,
and the lot of ground containing
about four and one-half acres
adjoining which adjoins the lot
above-mentioned
and was conveyed to this state by deed dated the
nineteenth day of July, eighteen hundred and ninety-two,
also one
the lot of ground situated on the waters of Tom's Run in Marshall
Ccounty, containing ten acres,
and which was conveyed to this state by deed dated the fifteenth day of December, eighteen
hundred and ninety-seven,
and also a tract of land of about
sixty-three acres, situated on Grave Creek in Marshall County,
and which was conveyed to this state by deed dated the sixteenth
day of December, nineteen hundred
and one, shall be and remain
the property of the state.
for the use of the penitentiary
(b) The former West Virginia Penitentiary at Moundsville is
no longer used as a state correctional institution. It shall be
maintained on a minimal basis and kept secure from trespass and
vandalism by the commissioner of corrections until it is sold or
transferred to another state, county or municipal agency which
assumes responsibility for the maintenance and security of the
facility.
(c) The West Virginia Penitentiary at Moundsville is hereby
replaced by the Mount Olive Correctional Complex in Fayette
Ccounty. All references in this code to the West Virginia
Penitentiary or the penitentiary shall be construed as references
to the Mount Olive Correctional Complex.
CHAPTER 29A. STATE ADMINISTRATIVE PROCEDURES ACT.
ARTICLE 1. DEFINITIONS AND APPLICATION OF CHAPTER.
§29A-1-3. Application of chapter; limitations.
(a) The provisions of this chapter do not apply in any
respect whatever to executive orders of the governor, which
orders to the extent otherwise lawful shall be effective
according to their terms
to the extent they are lawful.
Provided, That The executive orders shall be
admitted to record
recorded in the state register when and to the extent the
governor deems suitable and shall be included
therein in the
state register by the secretary of state when tendered by the
governor.
(b) Except
as to requirements for filing for requiring
filing in the state register and with the Legislature or its
rule-making review committee,
as provided in this chapter or
other law, the provisions of this chapter do not apply in any
respect whatever to the West Virginia
board of probation and
parole, the public service commission, the board of public works
sitting as such, and the secondary schools activities commission.
Provided, That The rules of
such these excepted agencies shall
be filed in the state register in the form prescribed by this
chapter and
shall be effective no sooner than sixty consecutive
days after being
so filed.
Provided, however, That The rules
promulgated by the state colleges and universities shall
only be
filed
only with the higher education governing boards.
Provided
further, That such These agencies may promulgate emergency rules
in conformity with section fifteen, article three of this
chapter.
(c) The provisions of this chapter do not apply to rules relating to, or contested cases involving, the conduct of inmates
or other persons admitted to public institutions,
except as
provided in this chapter and in section five, article one,
chapter twenty-five of this code for those penal or correctional
facilities under the jurisdiction and control of the state
commissioner of corrections, as listed in section three, article
one, chapter twenty-five of this code. On and after the
effective date of the amendment of this section, the provisions
of this chapter do apply in all respects to any other rule, as
that term is defined in section two of this article, which
relates to the conduct of inmates who have been committed to the
custody of the commissioner of corrections, including, but not
limited to, any rule establishing, amending, repealing or in any
other way relating to a system of inmate classification.
(d) The provisions of this chapter also do not apply to
rules relating to, or contested cases involving, open seasons and
the bag, creel, size, age, weight and sex limits with respect to
the wildlife in this state, the conduct of persons in military
service, or the receipt of public assistance.
Such These
excepted rules shall be filed in the state register in the form
prescribed by this chapter and
shall be effective upon filing.
(d) (e) Nothing
herein shall contained in this section may
be construed to affect, limit or expand any express and specific
exemption from this chapter contained in any other statute relating to a specific agency, but
such these exemptions shall be
construed and applied in accordance with the provisions of this
chapter to effectuate any limitations on
such these exemptions
contained in any
such other statute.
CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 12. PROBATION AND PAROLE.
§62-12-14b. Rules.
(a) The parole board shall, subject to the requirements of
chapter twenty-nine-a of this code, adopt rules governing the
procedure for considering prisoners for parole.
(b) Notwithstanding any previous filing of any of these
rules with the secretary of state, the board shall, by the first
day of July, one thousand nine hundred ninety-sixeven, file with
the legislative rule-making and review committee a certified copy
of: (i) All rules previously adopted or promulgated by the board
which are then in force and which have not previously been
submitted to that committee pursuant to section eleven, article
three, chapter twenty-nine-a of this code; and (ii) all of the
board's proposed rules which have not yet become effective prior
to the date of filing with the rule-making and review committee.
These rules and proposed rules shall conform in format and
numbering to the provisions of section six, article two, chapter
twenty-nine-a of this code, and shall include a designation of each rule as a legislative rule, interpretive rule or procedural
rule.
(c) If the parole board fails to file a certified copy of
any rule or proposed rule in accordance with this section on or
before the first day of July, one thousand nine hundred
ninety-sevenix, any rule or proposed rule not filed is thereafter
void and unenforceable and will be of no further force and
effect.
ARTICLE 13. CORRECTIONS MANAGEMENT.
§62-13-4. Powers and duties of commissioner or director
generally; compensation and funds of inmates.
(a) To accomplish the purposes of this article, the
commissioner (or the director of corrections management if one is
appointed) shall:
(a) (1) Exercise general supervision over the administration
of the institutions under the jurisdiction of the
department
division;
(b) (2) Establish separate subdivisions, to be headed by
deputy directors, of adult services, youth services, and other
subdivisions as he
or she deems considers advisable, which may be
headed by the same or different deputy directors.
which said
The deputy directors must be graduates of an accredited college
or university
with and must possess a degree in sociology, psychology, social science or a related field;
(c) (3) Establish
written rules
and regulations in writing
governing all subdivisions and institutions within the
department
division;
(d) (4) Establish an in-service training program for
personnel of the
department division;
(e) (5) Classify the institutions of the
department
division, varying according to
such factors
such as security
features,
program programs age,
and sex
and character of
the
inmates,
and physical stature or size;
character of inmates
(f) (6) Establish
by rule, promulgated in accordance with
the provisions of article three, chapter twenty-nine-a of this
code, a system of classification of inmates.
This shall be done
through a reception and examination procedure, and
in each
institution
shall have a classification committee and procedure
for assignment of inmates within the programs of the institution;
(g) (7) Cooperate with the department of education
and the
arts in providing for the education of inmates in all
institutions within the
department division, subject to section
thirteen-f, article two, chapter eighteen of this code;
(h) (8) Supervise the treatment, custody and discipline of
all inmates and the maintenance of the institutions and their
industries;
(i) (9) Establish a system of compensation for inmates of the correctional institutions of the state who perform good and
satisfactory work either within the industrial program or in the
servicing and maintenance of the correctional institutions or any
other institutions or camps within the state. The commissioner
(or the director, with the approval of the commissioner) may
establish a graduated scale of compensation to be paid to inmates
in accordance with their skill in industry.
(b) The principal officer of any correctional institution,
on request of an inmate, may expend up to one half of the money
so earned by
such the inmate on behalf of the family of
such the
inmate. The remainder of the money
so earned
after deducting
amounts expended as aforesaid, shall be accumulated to the credit
of the inmate and
shall be paid to the inmate at such times as
may be prescribed by
such rules and regulations rule. Such
Funds
so accumulated on behalf of inmates shall be held by the
principal officer of each institution, under a bond approved by
the attorney general.
(c) The accumulation of such total funds, not necessary for
current distribution, shall be invested, with the approval of the
commissioner or as appropriate, the director through the West
Virginia municipal bond commission, in short term bonds or
treasury certificates or equivalent of the United States. Funds
which are not distributed shall be invested in short term bonds,
treasury certificates or equivalent instruments which are sold or issued by the United States government. The investments shall be
approved by the commissioner, or as appropriate, by the director
through the West Virginia municipal bond commission. Bonds and
certificates
so purchased shall remain in the custody of the
state treasurer. The earnings from investments
so made shall be
reported to the principal officer of each institution from time
to time, as earned, and shall be credited to the respective
accounts of
such the institutions by the commission.
(d) When
such earnings are transferred to the respective
institutions, they shall be credited by the principal officer to
the credit of, and for the benefit of, the inmates' activities
account.
NOTE: The purpose of this bill is to require that the
Division of Corrections and the parole board comply with the
State Administrative Procedures Act with regard to certain rule- making activities. Except for filing requirements, present law
exempts the parole board from all provisions of the
Administrative Procedures Act and also exempts "rules relating to
or contested cases involving the conduct of inmates or other
persons admitted to public institutions." It would require the
Division of Corrections and the parole board to file certified
copies of all other proposed rules or rules in effect with the
Legislative Rule-making Review Committee by July 1, 1996 for
review by that committee, consistent with the rule-making
provisions of the Act. If the rules are not filed by that date,
they will become void and unenforceable.
This bill also updates the sections of the code relating to
the facilities which are under the control of the commissioner of
corrections, including making clear that the West Virginia Penitentiary at Moundsville has been replaced by the Mount Olive
Correctional Complex and repealing certain sections which are
obsolete because they are either no longer applicable or because
they relate to facilities no longer under the control of the
commissioner.
Strike-throughs indicate language which would be stricken
from the present law, and underscoring indicates new language
which would be added.
This bill is recommended for passage in the 1997 regular
session by the Legislative Oversight Committee on Regional Jails
and Correctional Facility Authority.
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