Bill Summary – FastDemocracy

WEST VIRGINIA LEGISLATURE
             2021 REGULAR SESSION
                           Enrolled Senate Bill 674
            BY SENATORS WELD, WOELFEL, AND LINDSAY
[Passed April 9, 2021; in effect 90 days from passage (July 8, 2021)]
    Enr SB 674
 AN ACT to amend and reenact §8-10-2a and §8-10-2b of the Code of West Virginia, 1931, as
         amended; to amend and reenact §50-3-2a of said code; and to amend and reenact §62-
         4-17 of said code, all relating generally to court-ordered costs, fines, forfeitures, restitution,
         and penalties; clarifying that unpaid restitution need not preclude a person from obtaining
         a valid driver’s license; establishing procedures to obtain a lien against a person who owes
         restitution; and providing procedures for removing a lien.
    Be it enacted by the Legislature of West Virginia:
                        CHAPTER 8. MUNICIPAL CORPORATIONS.
    ARTICLE 10. POWERS AND DUTIES OF CERTAIN OFFICERS.
    §8-10-2a. Payment of fines by electronic payments, credit cards, cash, money orders, or certified checks.
         A municipal court may accept electronic payments, credit cards, cash, money order, or
 certified checks for all costs, fines, forfeitures, restitution, or penalties electronically, by mail, or in
 person. Any charges made by the credit company shall be paid by the person responsible for
 paying the cost, fine, fee, restitution, or penalty.
    §8-10-2b. Payment plan; failure to pay will result in late fee and judgment lien; suspension of licenses for failure to pay fines and costs or failure to appear in court.
         (a) Upon request and subject to the following requirements, the municipal court clerk or,
 upon a judgment rendered on appeal, the clerk shall establish a payment plan for a person owing
 costs, fines, forfeitures, restitution, or penalties imposed by the court for a motor vehicle violation
 as defined in §17B-3-3a of this code, a criminal offense as defined in §17B-3-3c of this code, or
 other applicable municipal ordinances, so long as the person signs and files with the clerk an
 affidavit stating that he or she is financially unable to pay the costs, fines, forfeitures, restitution,
 or penalties imposed:
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         (1) A $25 administrative processing fee shall be paid at the time the payment form is filed
 or, in the alternative, the fee may be paid in no more than five equal monthly payments;
        (2) Unless incarcerated, a person must enroll in a payment plan no later than 90 calendar
 days after the date the court enters the order assessing the costs, fines, forfeitures, restitution, or
 penalties; and
        (3) If the person is incarcerated, he or she may enroll in a payment plan within 90 calendar
 days after release.
        (b) The West Virginia Supreme Court of Appeals shall develop a uniform payment plan
 form and financial affidavit for requests for the establishment of a payment plan pursuant to
 subsection (a) of this section. The forms shall be made available for distribution to the offices of
 municipal clerks, and municipal clerks shall use the payment plan form and affidavit form
 developed by the West Virginia Supreme Court of Appeals when establishing payment plans.
        (c)(1) The payment plan shall specify: (A) The number of payments to be made; (B) the
 dates on which such payments are due; (C) the amount due for each payment; (D) all acceptable
 payment methods; and (E) the circumstances under which the person may receive a late fee,
 have a judgment lien recorded against him or her, or have the debt sent to collections for
 nonpayment;
         (2) The monthly payment under the payment plan shall be calculated based upon all costs,
 fines, forfeitures, restitution, or penalties owed within the court, and shall be two percent of the
 person’s annual net income divided by 12, or $10, whichever is greater;
         (3) The court may review the reasonableness of the payment plan, and may on its own
 motion or by petition, waive, modify, or convert the outstanding costs, fines, forfeitures, restitution,
 or penalties to community service if the court determines that the individual has had a change in
 circumstances and is unable to comply with the terms of the payment plan.
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        (d) (1) The clerk may assess a $10 late fee each month if a person fails to comply with the
 terms of a payment plan and if any payment due is not received within 30 days after the due date,
 and the person:
        (A) Is not incarcerated;
        (B) Has not brought the account current;
        (C) Has not made alternative payment arrangements with the court; or
        (D) Has not entered into a revised payment plan with the clerk before the due date.
        (2) If after 90 days, a payment has not been received, the clerk may do one or both of the
 following: (A) Record a judgment lien as described in subsection (f) of this section; or (B) consign
 the delinquent costs, fines, forfeitures, restitution, or penalties to a debt collection agency
 contained on the State Tax Commissioner’s list of eligible debt collection agencies established
 and maintained pursuant to §14-1-18c of this code, an internal collection division, or both:
 Provided, That the entire amount of all delinquent payments collected shall be remitted to the
 court and may not be reduced by any collection costs or fees: Provided, however, That the
 collection fee may not exceed 25 percent of the delinquent payment amount. The clerk may send
 notices, electronically or by U.S. mail, to remind the person of an upcoming or missed payment.
        (e)(1) If after 90 days of a judgment a person fails to enroll in a payment plan and fails to
 pay their costs, fines, forfeitures, restitution, or penalties, the clerk may assess a $10 late fee and
 shall notify the person of the following:
        (A) That he or she is 90 days past due in the payment of costs, fines, forfeitures, restitution,
 or penalties imposed pursuant to a judgment of the court;
        (B) That he or she has failed to enroll in a payment plan;
        (C) Whether a $10 late fee has been assessed; and
        (D) That he or she may be the subject of a judgment lien or have his or her debt sent to a
 collection agency if the overdue payment of costs, fines, forfeitures, restitution, or penalties is not
 resolved within 30 days of the date of the notice issued pursuant to this subsection.
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        (2) If after 30 days from the issuance of a notice pursuant to subdivision (1) of this
 subsection, a payment has not been received, the clerk may do one or both of the following:
        (A) Record a judgment lien as described in subsection (f) of this section; or
        (B) Consign the delinquent costs, fines, forfeitures, restitution, or penalties to a debt
 collection agency contained on the State Tax Commissioner’s list of eligible debt collection
 agencies established and maintained pursuant to §14-1-18c of this code, an internal collection
 division, or both: Provided, That the entire amount of all delinquent payments collected shall be
 remitted to the court and may not be reduced by any collection costs or fees: Provided, however,
 That the collection fee may not exceed 25 percent of the delinquent payment amount.
        (f) To record a judgment lien, the clerk shall notify the prosecuting attorney of the county
 of nonpayment and shall provide the prosecuting attorney with an abstract of judgment. The
 prosecuting attorney shall file the abstract of judgment in the office of the clerk of the county
 commission in the county where the defendant was convicted and in any county in which the
 defendant resides or owns property. The clerk of the county commission shall record and index
 these abstracts of judgment without charge or fee to the prosecuting attorney and when recorded,
 the amount stated to be owed in the abstract constitutes a lien against all property of the
 defendant: Provided, That when all the costs, fines, fees, forfeitures, restitution, or penalties for
 which an abstract of judgment has been recorded are paid in full, the clerk of the municipal court
 shall notify the prosecuting attorney of the county of payment and provide the prosecuting attorney
 with a release of judgment, prepared in accordance with the provisions of §38-12-1 of this code,
 for filing and recordation pursuant to the provisions of this subdivision. Upon receipt from the clerk,
 the prosecuting attorney shall file the release of judgment in the office of the clerk of the county
 commission in each county where an abstract of the judgment was recorded. The clerk of the
 county commission shall record and index the release of judgment without charge or fee to the
 prosecuting attorney.
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        (g) A person whose driver’s license was suspended prior to July 1, 2020, solely for the
 nonpayment of costs, fines, forfeitures, restitution, or penalties, if otherwise eligible, shall have
 his or her license reinstated:
        (1) Upon payment in full of all outstanding costs, fines, forfeitures, restitution, or penalties
 and a $25 reinstatement fee paid to the Division of Motor Vehicles; or
        (2) Upon establishing a payment plan pursuant to subsection (a) of this section and the
 payment of a $25 administrative fee. The clerk shall notify the Division of Motor Vehicles that a
 payment plan is in effect, and upon receipt of the notification, the division shall waive the
 reinstatement fee.
        (h) If a person charged with a motor vehicle violation as defined in §17B-3-3a of this code
 or criminal offense fails to appear or otherwise respond in court, the municipal court clerk shall
 notify the Division of Motor Vehicles of the failure to appear: Provided, That notwithstanding any
 other provision of this code to the contrary, for residents of this state, the municipal court clerk
 shall wait at least 90 days from the date of the person’s failure to appear or otherwise respond
 before notifying the Division of Motor Vehicles thereof. Upon notice, the Division of Motor Vehicles
 shall suspend the person’s driver’s license or privilege to operate a motor vehicle in this state until
 such time that the person appears as required.
                            CHAPTER 50. MAGISTRATE COURTS.
     ARTICLE 3. COSTS, FINES, AND RECORDS.
     §50-3-2a. Payment by electronic payments, credit card payments, cash, money orders, or certified checks; payment plan; failure to pay fines results in a late fee and judgment lien.
        (a) A magistrate court may accept electronic payments, credit cards, cash, money order,
 or certified check for payment of all costs, fines, fees, forfeitures, restitution, or penalties in
 accordance with rules promulgated by the Supreme Court of Appeals. Any charges made by the
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 credit company shall be paid by the person responsible for paying the cost, fine, forfeiture,
 restitution, or penalty.
         (b) Upon request and subject to the following requirements, the magistrate clerk shall
 establish a payment plan for a person owing costs, fines, forfeitures, restitution, or penalties
 imposed by the court, so long as the person signs and files with the clerk, an affidavit stating that
 he or she is financially unable to pay the costs, fines, forfeitures, restitution, or penalties imposed:
         (1) A $25 administrative processing fee shall be paid at the time the payment form is filed
 or, in the alternative, the fee may be paid in no more than five equal monthly payments;
         (2) Unless incarcerated, a person must enroll in a payment plan no later than 180 calendar
 days after the date the court enters the order assessing the costs, fines, forfeitures, restitution, or
 penalties; and
         (3) If the person is incarcerated, he or she may enroll in a payment plan within 180
 calendar days after release.
         (c) The West Virginia Supreme Court of Appeals shall develop a uniform payment plan
 form and financial affidavit for requests for the establishment of payment plan pursuant to
 subsection (a) of this section. The forms shall be made available for distribution to the offices of
 magistrate clerks, and magistrate clerks shall use the payment plan form and affidavit form
 developed by the West Virginia Supreme Court of Appeals when establishing payment plans.
         (d)(1) The payment plan shall specify: (A) The number of payments to be made; (B) the
 dates on which the payments are due; (C) the amount due for each payment; (D) all acceptable
 payment methods; and (E) the circumstances under which the person may receive a late fee,
 have a judgment lien recorded against him or her, or have the debt sent to collections for
 nonpayment.
         (2) The monthly payment under the payment plan shall be calculated based upon all costs,
 fines, forfeitures, restitution, or penalties owed within the court, and shall be two percent of the
 person’s annual net income divided by 12 or $10, whichever is greater.
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     Enr SB 674
         (3) The court may review the reasonableness of the payment plan, and may on its own
 motion or by petition, waive, modify, or convert the outstanding costs, fines, forfeitures, restitution,
 or penalties to community service if the court determines that the individual has had a change in
 circumstances and is unable to comply with the terms of the payment plan.
         (e) (1) The clerk may assess a $10 late fee each month if a person fails to comply with the
 terms of a payment plan, and if any payment due is not received within 30 days after the due
 date, and the person:
         (A) Is not incarcerated;
         (B) Has not brought the account current;
         (C) Has not made alternative payment arrangements with the court; or
         (D) Has not entered into a revised payment plan with the clerk before the due date.
         (2) If, after 90 days, a payment has not been received, the clerk may do one or both of the
 following: (A) Record a judgment lien as described in subsection (f) of this section; or (B) consign
 the delinquent costs, fines, forfeitures, restitution, or penalties to a debt collection agency
 contained on the State Tax Commissioner’s list of eligible debt collection agencies established
 and maintained pursuant to §14-1-18c of this code, an internal collection division, or both:
 Provided, That the entire amount of all delinquent payments collected shall be remitted to the
 court and may not be reduced by any collection costs or fees: Provided, however, That the
 collection fee may not exceed 25 percent of the delinquent payment amount. The clerk may send
 notices, electronically or by U.S. mail, to remind the person of an upcoming or missed payment.
         (f)(1) If after 180 days of a judgment a person fails to enroll in a payment plan and fails to
 pay his or her costs, fines, forfeitures, restitution, or penalties, the clerk may assess a $10 late
 fee and shall notify the person of the following:
         (A) That he or she is 180 days past due in the payment of costs, fines, forfeitures,
 restitution, or penalties imposed pursuant to a judgment of the court;
         (B) That he or she has failed to enroll in a payment plan;
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        (C) Whether a $10 late fee has been assessed; and
        (D) That he or she may be the subject of a judgment lien or have his or her debt sent to a
 collection agency if the overdue payment of costs, fines, forfeitures, restitution, or penalties is not
 resolved within 30 days of the date of the notice issued pursuant to this subsection.
        (2) If after 30 days from the issuance of a notice pursuant to subdivision (1) of this
 subsection, a payment has not been received, the clerk may do one or both of the following:
        (A) Record a judgment lien as described in subsection (f) of this section; or
        (B) Consign the delinquent costs, fines, forfeitures, restitution, or penalties to a debt
 collection agency contained on the State Tax Commissioner’s list of eligible debt collection
 agencies established and maintained pursuant to §14-1-18c of this code, an internal collection
 division, or both: Provided, That the entire amount of all delinquent payments collected shall be
 remitted to the court and may not be reduced by any collection costs or fees: Provided, however,
 That the collection fee may not exceed 25 percent of the delinquent payment amount.
        (g) To record a judgment lien, the clerk shall notify the prosecuting attorney of the county
 of nonpayment and shall provide the prosecuting attorney with an abstract of judgment. The
 prosecuting attorney shall file the abstract of judgment in the office of the clerk of the county
 commission in the county where the defendant was convicted and in any county wherein the
 defendant resides or owns property. The clerk of the county commission shall record and index
 these abstracts of judgment without charge or fee to the prosecuting attorney and when recorded,
 the amount stated to be owed in the abstract constitutes a lien against all property of the
 defendant: Provided, That when all the costs, fines, fees, forfeitures, restitution, or penalties for
 which an abstract of judgment has been recorded are paid in full, the clerk of the municipal court
 shall notify the prosecuting attorney of the county of payment and provide the prosecuting attorney
 with a release of judgment