H. B. 4661
(By Mr. Speaker, Mr. Kiss, and Delegates Michael,
Staton and Frederick)
[Introduced February 26, 2004; referred to the
Committee on Finance.]
A BILL to amend and reenact §5-3-1 and §5-3-2 of the code of West
Virginia, 1931, as amended, all relating to the attorney
general and others providing legal services upon request of
officers, agencies or political subdivisions.
Be it enacted by the Legislature of West Virginia:
That §5-3-1 and §5-3-2 of the code of West Virginia, 1931, as
amended, be amended and reenacted, all to read as follows:
ARTICLE 3. ATTORNEY GENERAL.
§5-3-1. Written opinions and advice.
The attorney general shall give written opinions and advice
upon questions of law, and shall prosecute and defend suits,
actions, and other legal proceedings, and generally render and
perform all other legal services, whenever required to do so, in
writing, by the governor, the secretary of state, the auditor, the
state superintendent of free schools, the treasurer, the
commissioner of agriculture, the board of public works, the tax
commissioner, the state archivist and historian, the commissioner of banking, the adjutant general, the director of the division of
environmental protection, the superintendent of public safety, the
state commissioner of public institutions, the commissioner of the
division of highways, the commissioner of the bureau of employment
programs, the public service commission, or any other state
officer, board or commission, or the head of any state educational,
correctional, penal or eleemosynary institution; and it is unlawful
from and after the time this section becomes effective for any of
the public officers, commissions, or other persons above mentioned
to expend any public funds of the state of West Virginia for the
purpose of paying any person, firm, or corporation for the
performance of any legal services: Provided, That nothing
contained in this section impairs or affects any existing valid
contracts of employment for the performance of legal services
heretofore made.
It is also the duty of the attorney general to render to the
president of the Senate and/or the speaker of the House of
Delegates a written opinion or advice upon any questions submitted
to the attorney general by them or either of them whenever he or
she is requested in writing so to do.
Upon written request, the attorney general shall give his or
her written opinion and advice on a question of law that is
connected with the interests of the state and that is within the
scope of the duties or discretion of the requesting person or
governmental entity with regard to legal matters that are currently
pending before that person or governmental entity, and shall prosecute and defend suits, actions, and other legal services on
behalf of the people of West Virginia, the state of West Virginia,
or any of its departments, agencies, institutions, officers,
employees, or political subdivisions thereof, whenever required to
do so by the following persons or entities:
(1) In the legislative branch of state government, such
services may be requested by:
(A) The president of the Senate;
(B) The speaker of the House of Delegates;
(C) The joint committee on government and finance;
(D) The chairman of the senate committee on the judiciary;
(E) The chairman of the house committee on the judiciary;
(F) The chairman of the senate committee on finance;
(G) The chairman of the house committee on finance;
(H) The chairman of the senate committee on government
organizations;
(I) The chairman of the house committee on government
organizations;
(J) The chairman of the senate committee on education;
(K) The chairman of the house committee on education;
(L) The clerk of the Senate;
(M) The clerk of the House of Delegates;
(N) The court of claims; or
(O) The legislative manager; and
(2) In the executive branch of state government, such
services may be requested by the following elected officers:
(A) The governor;
(B) The secretary of state;
(C) The auditor;
(D) The treasurer; or
(E) The commissioner of agriculture; and
(3) In the executive branch of state government, such
services may be requested by the following appointed officers or
entities:
(A) The secretary of the department of administration;
(B) The secretary of the department of education and the arts;
(C) The secretary of the department of environmental
protection;
(D) The secretary of the department of health and human
resources;
(E) The secretary of the department of military affairs and
public safety;
(F) The secretary of the department of tax and revenue;
(G) The secretary of the department of transportation;
(H) The commissioner of the bureau of employment programs;
(I) The public service commission;
(J) The bureau child support enforcement;
(K) The commissioner of the division of culture and history;
(L) The commissioner of banking;
(M) The adjutant general;
(N) The director of the division of environmental protection;
(O) The superintendent of the West Virginia state police;
(P) The commissioner of corrections;
(Q) The commissioner of the division of highways;
(R) The public service commission;
(S) The head of any state educational, correctional, penal or
eleemosynary institution; or
(T) Any other appointed officer, board or commission.
§5-3-2. Act as counsel for state; duties and powers as to
prosecuting attorneys; defense of national guardsmen.
(a) The attorney general shall,
upon written request by an
officer or entity described in section one of this article, provide
the following services:
(1) appear Appear as counsel for the state in all causes
pending in the supreme court of appeals, or in any federal court,
in which the state is interested;
(2) he shall appear Appear in any cause in which the state is
interested that is pending in any other court in the state
,; on the
written request of the governor, and when such appearance is
entered he shall take charge of and have control of such cause;
(3) he shall defend Defend all actions and proceedings
against any state officer in his official capacity in any of the
courts of this state or any of the federal courts when the state is
not interested in such cause against such officer, but should the
state be interested against such officer, he shall appear for the
state;
(4) he shall institute Institute and prosecute
all civil
actions and proceedings in favor of or for the use of the state which may be necessary in the execution of the official duties of
any state officer, board or commission on the written request of
such officer, board or commission
;.
(b) he The attorney general shall, when requested by the
prosecuting attorney of a county wherein a state institution of
correction is located, provide attorneys for appointment as special
prosecuting attorneys to assist the prosecuting attorney of said
county in the prosecution of criminal proceedings when, in the
opinion of the circuit judge of said county, or a justice of the
West Virginia supreme court of appeals, extraordinary circumstances
exist at said institution which render the financial resources of
the office of the prosecuting attorney inadequate to prosecute said
cases; he may consult with and advise the several prosecuting
attorneys in matters relating to the official duties of their
office, and may require a written report from them of the state and
condition of the several causes, in which the state is a party,
pending in the courts of their respective counties; he may require
the several prosecuting attorneys to perform, within the respective
counties in which they are elected, any of the legal duties
required to be performed by the attorney general which are not
inconsistent with the duties of the prosecuting attorneys as the
legal representatives of their respective counties; when the
performance of any such duties by the prosecuting attorney
conflicts with his duties as the legal representative of his
county, or for any reason any prosecuting attorney is disqualified
from performing such duties, the attorney general may require the prosecuting attorney of any other county to perform such duties in
any county other than that in which such prosecuting attorney is
elected and for the performance of which duties outside of the
county in which he is elected the prosecuting attorney shall be
paid his actual traveling and other expenses out of the
appropriation for contingent expenses for the department for which
such services are rendered; the attorney general shall keep in
proper books, a register of all causes prosecuted or defended by
him in behalf of the state or its officers and of the proceedings
had in relation thereto, and deliver the same to his successor in
office; and he shall preserve in his office all his official
opinions and publish the same in his biennial report.
(c) Upon request of any member of the West Virginia national
guard who has been named defendant in any civil action arising out
of that guardsman's action while under orders from the governor
relating to national guard assistance in disasters and civil
disorders, the attorney general shall appear as counsel for and
represent such guardsman.
(d) The Legislature may authorize any of the officers or
entities described in section one of this article to expend public
funds of the state of West Virginia for the purpose of paying any
person, firm, or corporation for the performance of any legal
services provided for in this section. Notwithstanding that an
officer or entity has expended public funds for legal services
under a legislative authorization, that person or entity may still
request, from time to time, that the attorney general provide the services described in this article.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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