H. B. 2476
(By Delegates Perry, Beach, Hartman, Pino and Leach)
[Introduced February 17, 2005; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §62-12-19 of the Code of West Virginia,
1931, as amended, relating generally to parole and parole
proceedings; providing that certain persons who have been
released on parole three times and had their parole revoked
are not eligible for further release on parole; authorizing
the Parole Board to hire hearing examiners; and authorizing
the Commissioner of the Division of Corrections to issue
subpoenas for persons and records necessary to prove a
violation of the terms and conditions of a parolee's parole.
Be it enacted by the Legislature of West Virginia:
That §62-12-19 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 12. PROBATION AND PAROLE.
§62-12-19. Violation of parole.
(a) If at any time during the period of parole there
shall be
is reasonable cause to believe that the parolee has violated any of
the conditions of his or her release on parole, the parole officer may arrest him or her with or without an order or warrant, or the
Commissioner of Corrections may issue
it's a written order or
warrant for his or her arrest, which written order or warrant
shall
be is sufficient for his or her arrest by any officer charged with
the duty of executing an ordinary criminal process. The
Commissioner's written order or warrant delivered to the sheriff
against the paroled prisoner shall be a command to keep custody of
the parolee for the jurisdiction of the Division of Corrections and
during the period of custody, the parolee may be admitted to bail
by the court before which the parolee was sentenced. If the
parolee is not released on a bond, the costs of confining the
paroled prisoner shall be paid out of the funds appropriated for
the Division of Corrections.
(b) When a parolee is under arrest for violation of the
conditions of his or her parole, he or she shall be given a prompt
and summary hearing, at which the parolee and his or her counsel
shall be is given an opportunity to attend. If at the hearing it
shall appear appears to the satisfaction of the Board that the
parolee has violated any condition of his or her release on parole,
or any rules or conditions of his or her supervision, the Board may
revoke his or her parole and may require him or her to serve in
prison the remainder or any portion of his or her maximum sentence
for which, at the time of his or her release, he or she was subject
to imprisonment:
Provided, That if the violation of the conditions
of parole or rules for his or her supervision is not a felony as
set out in section eighteen of this article, the Board may, if in its judgment the best interests of justice do not require
revocation, reinstate him or her on parole. The Division of
Corrections
will shall effect release from custody upon approval of
a home plan. Notwithstanding any provision of this code to the
contrary, when reasonable cause has been found to believe that a
parolee has violated the conditions of his or her parole but
said
the violation does not constitute felonious conduct, the
Commissioner may, in his or her discretion and with the written
consent of the parolee, allow the parolee to remain on parole with
additional conditions or restrictions.
Such The additional
conditions or restrictions may include, but
shall not be are not
limited to, participation in any program described in subsection
(d), section five, article eleven-c of this chapter. Compliance by
the parolee with
such the conditions of parole
shall preclude
precludes revocation of parole for the conduct which constituted
the violation. Failure of the parolee to comply with
such the
conditions or restrictions and all other conditions of release
shall constitute is an additional violation of parole and the
parolee may be proceeded against under the provisions of this
section for the original violation as well as any subsequent
violations.
(c) When a parolee has violated the conditions of his or her
release on parole by confession to, or being convicted of, any of
the crimes set forth in section eighteen of this article, he or she
shall be returned to the custody of the Division of Corrections to
serve the remainder of his or her maximum sentence, during which remaining part of his or her sentence he or she
shall be is
ineligible for further parole.
(d) Whenever the parole of a paroled prisoner has been
revoked, the Commissioner shall upon receipt of the Board's written
order of revocation, convey and transport the paroled prisoner to
a state correctional institution. A paroled prisoner whose parole
has been revoked shall remain in custody of the sheriff until
delivery to a corrections officer sent and duly authorized by the
Commissioner for the removal of the paroled prisoner to a state
penal institution; the cost of confining
such the paroled prisoner
shall be paid out of the funds appropriated for the Division of
Corrections.
Any person having been released on parole three times
and subsequently had his or her parole revoked for violations of
any term or condition of parole shall serve the remainder of his or
her sentence and is not eligible for further release on parole.
(e) When a paroled prisoner is convicted of, or confesses to,
any one of the crimes enumerated in section eighteen of this
article, it
shall be is the duty of the Board to cause him or her
to be returned to this state for a summary hearing as provided by
this article. Whenever a parolee has absconded supervision, the
Commissioner shall issue a warrant for his or her apprehension and
return to this state for the hearing provided
for in this article:
Provided, That the Board may, if it
be of opinion determines the
best interests of justice do not require revocation, cause the
paroled absconder to be reinstated to parole.
(f) A warrant filed by the Commissioner shall stay the running of his or her sentence until the parolee is returned to the custody
of the Division of Corrections and physically in
the state of West
Virginia.
(g) Whenever a parolee who has absconded supervision or has
been transferred out of this state for supervision pursuant to
section one, article six, chapter twenty-eight of this code is
returned to West Virginia due to a violation of parole and costs
are incurred by the Division of Corrections, the Commissioner may
assess reasonable costs from the parolee's inmate funds or the
parolee as reimbursement to the Division of Corrections for the
costs of returning him or her to
the state of West Virginia.
(h) Conviction of a felony for conduct occurring during the
period of parole
constitutes is proof of violation of the
conditions of parole and the hearing procedures required by the
provisions of this section are inapplicable.
(i) The Parole Board is authorized to hire one or more persons
to act as hearing examiners for all final revocation hearings. The
hearing examiner shall preside over the revocation proceedings,
rule on procedural and evidentiary matters and make recommendations
to the Board as to the disposition of the case. Upon objection of
any party or on its own motion, the Board shall conduct a de novo
review of the record and proceedings after which it shall either
affirm the decision of the hearing examiner, reverse the decision
of the hearing examiner and release the parolee back on parole or
remand the matter for further proceedings. This subsection does
not prevent the Board or a Board member from conducting revocation proceedings.
(j) The Commissioner of the Division of Corrections may issue
subpoenas for persons and records necessary to prove a violation of
the terms and conditions of a parolee's parole either at a
preliminary hearing or at a final hearing before the Parole Board.
The subpoenas shall be served in the same manner provided in the
Rules of Criminal Procedure. The subpoenas may be enforced by the
Commissioner through application or petition of the Commissioner to
the circuit court for contempt or other relief.
NOTE: The purpose of this bill is to revise the parole law to:
Keep certain persons who have been released on parole three times
and had their parole revoked from being eligible for further
release on parole; authorize the Parole Board to hire hearing
examiners; and authorize the Commissioner of the Division of
Corrections to issue subpoenas for persons and records necessary to
prove a violation of the terms and conditions of a parolee's
parole.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
This bill was recommended for introduction and passage during
the 2005 legislative session by the Legislative Oversight Committee
on the Regional Jail and Correctional Facility Authority.
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