Senate Bill No. 653
(By Senators Prezioso and Olvierio)
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[Introduced February 19, 2007; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §6-3-1 of the Code of West Virginia,
1931, as amended; and to amend and reenact §61-2-10b of said
code, all relating to creating the position of transportation
officer to serve under the authority of county sheriffs with
the primary duty of transporting prisoners to regional jails;
and creating criminal offenses involving malicious and
unlawful assault and assault and battery of a transportation
officer.
Be it enacted by the Legislature of West Virginia:
That §6-3-1 of the Code of West Virginia, 1931, as amended, be
amended and reenacted; and that §61-2-10b of said code be amended
and reenacted, all to read as follows:
ARTICLE 3. DEPUTY OFFICERS AND CONSERVATORS OF THE PEACE.
§6-3-1. Appointment of deputies, transportation officers and local
conservators of the peace; powers and duties;
compensation; vacating appointment of deputy sheriff;
removal of conservators.
(a)(1) The clerk of the Supreme Court of Appeals, or of any
circuit, criminal, common pleas, intermediate or county court, or
of any tribunal established by law in lieu thereof, may, with the
consent of the court, or such tribunal, duly entered of record,
appoint any person or persons his
or her deputy or deputies.
(2) A sheriff, surveyor of lands, or Assessor may, with the
consent of the county court duly entered of record, appoint any
person or persons his
or her deputy or deputies.
(3) A sheriff, when in the opinion of the judge of the circuit
court the public interest requires it, may, with the assent of said
court, duly entered of record, appoint any person or persons his
or
her deputy or deputies to perform any temporary service or duty.
(4) Each deputy so appointed shall take the same oath of
office required of his
or her principal, and may, during his
or her
continuance in office, perform and discharge any of the official
duties of his
or her principal, and any default or misfeasance in
office of the deputy shall constitute a breach of the conditions of
the official bond of his
or her principal.
(5) A sheriff in any county in which there are more than four
deputies shall devote his
or her full time to the performance of
the services or duties required by law of such sheriff, and he
or
she shall not receive any compensation or reimbursement, directly
or indirectly, from any person, firm or corporation for the
performance of any private or public services or duties:
Provided,
That any such sheriff may retain or make any investment and receive
income therefrom, unless such investment is otherwise prohibited by law or will impair his
or her independence of judgment in the
exercise of, or might reasonably tend to conflict with the proper
discharge of, the services or duties of his
or her office. A
sheriff in any county in which there are four or fewer deputies, or
a deputy sheriff in any county irrespective of the number of
deputies, need not devote his
or her full time to the services or
duties of his
or her office as sheriff or his
or her employment as
deputy sheriff, as the case may be; but any such sheriff or deputy
sheriff shall not engage in any business or transaction, accept
other employment or make any investment which is otherwise
prohibited by law or which will impair his
or her independence of
judgment in the exercise of, or might reasonably tend to conflict
with the proper discharge of, the services or duties of his
or her
office as sheriff or his
or her employment as deputy sheriff, as
the case may be. A sheriff and his
or her deputies in any county,
irrespective of the number of deputies, shall receive for the
performance of their public services and duties no compensation or
remuneration except such as may be regularly provided and paid out
of public funds to the amount and in the manner provided by law.
No sheriff or deputy sheriff in any county, irrespective of the
number of deputies, may receive, directly or indirectly, any gift
or donation from any person, firm or corporation.
(6) Except as hereinafter expressly provided by subsection (b)
of this section no sheriff shall appoint or continue the
appointment of any deputy contrary to the provisions hereof. Any
sheriff or deputy sheriff who shall violate any of the provisions of this section shall be guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than five hundred nor
more than five thousand dollars, or confined in jail not to exceed
one year, or both, in the discretion of the court.
(7) Circuit courts shall have jurisdiction in equity and
mandamus, and the Supreme Court of Appeals shall have jurisdiction
in mandamus, upon the filing of a petition by the prosecuting
attorney, the Attorney General, or any three or more citizens of
the county, to require any sheriff and the county court to vacate
the appointment of any deputy, the appointment of which is made or
continued in violation of the provisions hereof. Any such
proceeding may be instituted and prosecuted by the Attorney General
either in the circuit court of Kanawha county or in the county for
which such appointment was made.
(b)(1) Any resident or group of residents of any
unincorporated community, as hereinafter defined, may petition the
sheriff for the appointment of a local conservator of the peace and
such sheriff, when in his
or her opinion the public interests
require it, may with the assent of said county court and the judge
of the circuit court duly entered of record, either in term or
vacation of any such court, appoint any person or persons a local
conservator or conservators of the peace to perform the duties of
a conservator of the peace outside of any incorporated city, town
or village. No person shall be appointed such local conservator of
the peace who has not been a bona fide resident and taxpayer of the
county for at least one year prior to his
or her appointment. Such local conservator of the peace during his
or her continuance in
office, may perform and discharge any of the official duties of the
sheriff, subject nevertheless to the provisions of this section.
No local conservator so appointed shall be subject to the direction
or control of any person other than his
or her principal and he
or
she shall not perform any services or duties, either private or
public, except the duties required by law of conservators of the
peace pursuant to the provisions hereof, for any person, firm, or
corporation. No such local conservator shall be entitled to
collect or receive any fees provided by law to be paid to the
sheriff or to a deputy sheriff, but all fees provided by law for
the sheriff, when such duties and services are rendered by such
local conservator, shall be paid to the sheriff as regular
collections of the sheriff's office. The local conservator shall
be paid for the public services performed by him
or her a salary of
not less than seventy-five dollars per month out of the county
treasury from a fund to be paid into such treasury by a resident or
the residents of the community for which he
or she is appointed,
for the sole purpose of compensating such local conservator or
conservators and no such local conservator shall receive any other
compensation, directly or indirectly, from any person, firm, or
corporation, for any private or public service, except the salary
payable to him
or her for his
or her public services and duties and
from such fund, except that he
or she shall be entitled to witness
and mileage fees when a witness in a court of record. Each local
conservator so appointed shall take the same oath of office required of his
or her principal and any default or misfeasance in
the office of such local conservator shall constitute a breach of
the conditions of the official bond of his
or her principal.
(2) When the sheriff shall have been petitioned for the
appointment of a local conservator and has determined that the
appointment is proper, he
or she shall select the person whom he
or she proposes to have appointed such conservator and shall notify
the county
court commission of the community for which such
conservator is to be appointed and the name of the person proposed
for such appointment. The county
court commission shall thereupon
cause notice that the sheriff has recommended the appointment of
the person named as conservator for the community named to be
published as a Class II 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. The
notice shall designate a day not less than five days after the date
of the last publication when the county
court commission will act
upon the petition and recommendation. Neither the county
court
commission nor the judge of the circuit court shall assent and
approve the appointment of such local conservator until such
publication has been made. The costs of the publication shall be
paid by the person or persons petitioning for the appointment of
the conservator.
No local conservator shall be appointed except it be made to
appear to the satisfaction of the county
court commission and the
judge of the circuit court that because of the lack of sufficient funds, geographical location of the unincorporated community for
which such conservator is to be appointed, or other good reason,
the sheriff and his
or her regular deputies and the constables of
the county are not sufficient to afford proper local policing of
such community and that the person or persons moving for the
appointment of such local conservator have made satisfactory
arrangements to compensate him
or her for his
or her services as
such local conservator of the peace.
(3) Such local conservator of the peace shall have all the
powers and duties of a regularly appointed deputy sheriff except
that he
or she shall not execute any civil process except such
process as may be necessary to bring parties before the court in
any action at law or suit in equity and subpoenas for witnesses
within the unincorporated community for which he
or she is
appointed and within a distance of one mile outside the boundaries
thereof, except as hereinafter expressly provided, but he
or she
shall not participate in any strike, unemployment boycott, or other
industrial or labor dispute, nor serve any court process of any
character relating thereto. He
or she shall act as such local
conservator only in the unincorporated community for which he
or
she is appointed, and within a distance of one mile from the
boundaries thereof as fixed by the county court:
Provided,
however, That the authority of one local conservator shall not
extend into any other unincorporated community for which another
local conservator is appointed and acting, except as otherwise
expressly provided by subdivision (6) of this subsection, except that in fresh pursuit he
or she may effect arrests anywhere in the
county. He
or she may also exercise the powers of a regularly
appointed deputy anywhere in the county when required to guard or
assist in guarding a payroll, or any other property of value in
transit to or from the unincorporated community for which he
or she
is appointed. Any person arrested by such local conservator shall,
with all convenient speed, be turned over to the sheriff, or one of
his
or her regular deputies, or to a regular constable of the
county to be dealt with according to law, and his
or her authority
for that purpose shall be coextensive with the county.
(4) Any local conservator appointed to perform the duties of
conservator of the peace shall be a public officer and the payment,
or contribution to the payment of compensation of such local
conservator shall not constitute the person, firm or corporation
making such payment or contribution the employer of such local
conservator and no person, firm or corporation paying, or
contributing to the payment of compensation to such local
conservator shall be answerable in law or in equity for any damages
to person or property resulting from any official act of such local
conservator.
(5) No person appointed such local conservator shall thereby
be entitled to carry weapons, but such local conservator may carry
weapons when he
or she shall be duly licensed and shall have given
bond as provided by section two, article seven, chapter sixty-one
of the Code of West Virginia, one thousand nine hundred thirty-one.
(6) Not more than one local conservator of the peace shall be appointed, to perform the duties of conservator of the peace, for
each two thousand five hundred inhabitants of the county as
ascertained by the last regular decennial census after deducting
the number of inhabitants of the county residing in the
incorporated cities, towns and villages in such county. Not more
than one local conservator shall be appointed for any
unincorporated community unless the population thereof exceed
fifteen hundred people and in such case not more than two
conservators shall be appointed for such community.
(7) The phrase "unincorporated community" within the meaning
of this section shall mean any center of population wherein fifty
or more persons reside within an area of not more than one square
mile.
(8) The county
court commission and the judge of the circuit
court in approving the appointment of a local conservator shall
enter of record an order making such appointment and shall show
therein the necessity for the appointment, the person or persons on
whose motion the appointment is made, the arrangement for the
payment of compensation to such local conservator, the
unincorporated community or communities, for which the appointment
is made, including the general boundary of each unincorporated
community for which he
or she is appointed.
(9) No local conservator shall act as an election official or
remain in, about or near any voting place or place of political
convention, further than is necessary for him
or her to promptly
cast his
or her vote and retire from the voting place.
(10) Any local conservator violating any of the provisions of
subdivisions (3) and (9) of this subsection shall be guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less
than fifty nor more than three hundred dollars, or be confined in
the county jail not more than six months, or both, in the
discretion of the court; and it shall be the duty of the sheriff
and the county
court commission to forthwith revoke his
or her
appointment irrespective of any criminal prosecution. A proceeding
in mandamus or injunction shall lie in the circuit court and a
proceeding in mandamus shall lie in the Supreme Court of Appeals at
the instance of the prosecuting attorney, the Attorney General, or
of any three or more citizens of the community for which such
conservator is appointed, to require the performance of such duty
by the sheriff and the county
court commission.
(11) Such local conservator shall serve during the joint will
and pleasure of the sheriff and the county
court commission and his
or her appointment may be revoked by order entered of record by the
county
court commission either with or without the assignment of
cause therefor.
A local conservator may be removed by the judge of the circuit
court, either in term or vacation, for drunkenness, gross
immorality, incompetence, neglect of duty, or other good cause,
upon the petition of three or more residents of the community for
which he
or she has been appointed. The petition shall set forth
the cause or causes for which such removal is asked and shall show
that demand for removal has been made of the sheriff and the county
court commission and that the sheriff and the county
court
commission have failed to remove the local conservator. At least
three copies of the petition shall be filed, and upon the filing of
the petition the judge shall fix a time and place for a hearing
thereon, which time shall not be less than ten days after the
filing of the petition, and shall cause a copy thereof to be served
upon the sheriff and such local conservator at least ten days
before the hearing thereon.
(c) A sheriff, when in the opinion of the judge of the circuit
court the public interest requires it, may, with the assent of said
court, duly entered of record, appoint any person or persons his or
her transportation officers to be primarily responsible for
transporting prisoners.
(1) Each transportation officer so appointed shall take the
same oath of office required of his or her principal, and may,
during his or her continuance in office, perform and discharge any
of the official duties of his or her principal related to the
transportation of prisoners, and any default or misfeasance in
office of the transportation officer shall constitute a breach of
the conditions of the official bond of his or her principal.
(2) Transportation officers shall be armed personnel whose
responsibilities include the safe transportation of prisoners to
regional jails as required by law. They shall also assist the
sheriff with other functions, including assisting in guarding
persons subject to mental hygiene proceedings as well as prisoners
in hospitals.
(3) Transportation officers shall be trained in the use of any
department issued firearm and required to complete any applicable
training and qualifications training course consistent with the
transportation officer's responsibilities. Training shall also be
required in the use of nonlethal force, including, but not limited
to, pepper spray, tasers and mechanisms or devices used for
restraint of persons.
(4) Transportation officers shall receive no compensation or
remuneration except that which is regularly provided and paid out
of public funds to the amount and in the manner provided by law.
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-10b. Malicious assault; unlawful assault; battery and
recidivism of battery; assault on police officers,
conservation officers, probation officers, humane
officers, transportation officers, emergency
medical service personnel, firefighters, fire
marshal, Division of Forestry employees and county
or state correctional employees; penalties.
(a)
Malicious assault. -- Any person who maliciously shoots,
stabs, cuts or wounds or by any means causes bodily injury with
intent to maim, disfigure, disable or kill a police officer,
probation officer, conservation officer, humane officer,
transportation officer, emergency medical service personnel,
firefighter, State Fire Marshal or employee, Division of Forestry
employee, county correctional employee or state correctional
employee, employee of an urban mass transportation system or Public Service Commission motor carrier inspector acting in his or her
official capacity and the person committing the malicious assault
knows or has reason to know that the victim is a police officer,
probation officer, conservation officer, humane officer,
transportation officer, emergency medical service personnel,
firefighter, State Fire Marshal or employee, Division of Forestry
employee, county correctional employee, state correctional
employee, employee of an urban mass transportation system or Public
Service Commission motor carrier inspector acting in his or her
official capacity is guilty of a felony and, upon conviction
thereof, shall be confined in a correctional facility for not less
than three nor more than fifteen years.
(b)
Unlawful assault. -- Any person who unlawfully but not
maliciously shoots, stabs, cuts or wounds or by any means causes a
police officer, probation officer, conservation officer, humane
officer,
transportation officer, emergency medical service
personnel, firefighter, State Fire Marshal or employee, Division of
Forestry employee, county correctional employee or state
correctional employee, employee of an urban mass transportation
system or Public Service Commission motor carrier inspector acting
in his or her official capacity bodily injury with intent to maim,
disfigure, disable or kill him or her and the person committing the
unlawful assault knows or has reason to know that the victim is a
police officer, probation officer, conservation officer, humane
officer,
transportation officer emergency medical service
personnel, firefighter, State Fire Marshal or employee, Division of Forestry employee, county correctional employee, state correctional
employee, employee of an urban mass transportation system or Public
Service Commission motor carrier inspector acting in his or her
official capacity is guilty of a felony and, upon conviction
thereof, shall be confined in a correctional facility for not less
than two nor more than five years.
(c)
Battery. -- Any person who unlawfully, knowingly and
intentionally makes physical contact of an insulting or provoking
nature with a police officer, probation officer, conservation
officer, humane officer,
transportation officer, emergency medical
service personnel, firefighter, State Fire Marshal or employee,
Division of Forestry employee, county correctional employee, state
correctional employee, employee of a mass transportation system or
Public Service Commission motor carrier inspector acting in his or
her official capacity, or unlawfully and intentionally causes
physical harm to a police officer, probation officer, conservation
officer, humane officer,
transportation officer, emergency medical
service personnel, firefighter, State Fire Marshal or employee,
Division of Forestry employee, county correctional employee, state
correctional employee, employee of an urban mass transportation
system or a Public Service Commission motor carrier inspector
acting in such capacity, is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in jail for not less than one
month nor more than twelve months, fined the sum of five hundred
dollars, or both. If any person commits a second such offense, he
or she is guilty of a felony and, upon conviction thereof, shall be confined in a correctional facility for not less than one year nor
more than three years or fined the sum of one thousand dollars or
both fined and confined. Any person who commits a third violation
of this subsection is guilty of a felony and, upon conviction
thereof, shall be confined in a correctional facility not less than
two years nor more than five years or fined not more than two
thousand dollars or both fined and confined.
(d)
Assault. -- Any person who unlawfully attempts to commit
a violent injury to the person of a police officer, probation
officer, conservation officer, humane officer,
transportation
officer, emergency medical service personnel, firefighter, State
Fire Marshal or employee, Division of Forestry employee, county
correctional employee, state correctional employee, employee of a
mass transportation system or Public Service Commission motor
carrier inspector acting in his or her official capacity, or
unlawfully commits an act which places a police officer, probation
officer, conservation officer, humane officer,
transportation
officer, emergency medical service personnel, firefighter, Division
of Forestry employee, county correctional employee or state
correctional employee, employee of a mass transportation system or
Public Service Commission motor carrier inspector acting in his or
her official capacity in reasonable apprehension of immediately
receiving a violent injury, is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in jail for not less than
twenty-four hours nor more than six months, fined not more than two
hundred dollars, or both fined and confined.
(e) For purposes of this section:
(1) "Police officer" means any person employed by the State
Police, any person employed by the state to perform law-enforcement
duties, any person employed by a political subdivision of this
state who is responsible for the prevention or detection of crime
and the enforcement of the penal, traffic or highway laws of this
state or employed as a special police officer as defined in section
forty-one, article three of this chapter.
(2) "Transportation officer" means any person employed by the
office of a county sheriff whose primary responsibility is to
transport prisoners as provided under the provisions of subsection
(c), section one, article three, chapter six of this code.
(2) (3) "Employee of an urban mass transportation system"
means any person employed by an urban mass transportation system as
such is defined in section three, article twenty-seven, chapter
eight of this code or by a system that receives federal transit
administration funding under 49 U.S.C. §5307 or §5311.
(3) (4) "Division of Forestry employee" means an officer,
agent, employee or servant, whether full-time or not, of the
Division of Forestry.
NOTE: The purpose of this bill is to create the position of
transportation officer to serve under county sheriffs in
transporting prisoners to and from regional jails. The bill also
creates criminal offenses, including malicious and unlawful assault
of a transportation officer, and assault and battery of a
transportation officer.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.