MISSISSIPPI LEGISLATURE
2018 Regular Session
To: Judiciary A
By: Representative Baker
AN ACT TO AMEND SECTIONS 7-5-1 AND 7-5-8, MISSISSIPPI CODE OF 1972, TO REQUIRE APPROVAL OF THE OUTSIDE COUNSEL OVERSIGHT COMMISSION IN CERTAIN ACTIONS BROUGHT BY THE ATTORNEY GENERAL; TO AMEND SECTIONS 1-1-9, 1-1-11, 1-1-103, 5-3-57, 7-1-5, 7-3-47, 7-5-5, 7-5-7, 7-5-9, 7-5-21, 7-5-35, 7-5-37, 7-5-39, 7-5-41, 7-5-43, 7-5-45, 7-5-47, 7-5-51, 7-5-54 AND 7-5-55, MISSISSIPPI CODE OF 1972; TO BRING FORWARD SECTION 7-5-59, MISSISSIPPI CODE OF 1972, WHICH PROVIDES FOR THE AUTHORITY OF THE ATTORNEY GENERAL FOR PURPOSES OF AMENDMENT; TO AMEND SECTIONS 7-5-66, 7-7-204, 7-7-211 AND 7-9-51, MISSISSIPPI CODE OF 1972; TO BRING FORWARD SECTION 7-11-15, MISSISSIPPI CODE OF 1972, WHICH PROVIDES FOR CERTAIN AUTHORITY OF THE ATTORNEY GENERAL, FOR PURPOSES OF AMENDMENT; TO AMEND SECTION 9-3-17, MISSISSIPPI CODE OF 1972, TO CONFORM TO PRECEDING AMENDMENTS; TO BRING FORWARD SECTIONS 11-17-19, 11-43-3, 11-45-3, 13-7-41 AND 17-13-11, MISSISSIPPI CODE OF 1972, WHICH PROVIDES FOR CERTAIN AUTHORITY OF THE ATTORNEY GENERAL, FOR PURPOSE OF AMENDMENT; TO AMEND SECTIONS 19-2-12, 23-15-813, 25-4-21 AND 25-4-113, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING SECTIONS; TO BRING FORWARD SECTIONS 25-7-7, 25-9-127 AND 25-31-11, MISSISSIPPI CODE OF 1972, WHICH PROVIDE CERTAIN AUTHORITY OF THE ATTORNEY GENERAL TO FILE CERTAIN ACTIONS; TO AMEND SECTIONS 25-31-19 AND 25-31-25, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING SECTIONS; TO BRING FORWARD SECTION 25-31-27, MISSISSIPPI CODE OF 1972, WHICH PROVIDES FOR CERTAIN DUTIES OF THE ATTORNEY GENERAL, FOR PURPOSES OF AMENDMENT; TO AMEND SECTIONS 27-3-73, 27-7-83 AND 27-9-39, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING SECTIONS; TO BRING FORWARD SECTIONS 27-9-55, 27-13-27 AND 27-13-57, MISSISSIPPI CODE OF 1972, WHICH PROVIDES CERTAIN AUTHORITY FOR THE ATTORNEY GENERAL TO FILE CERTAIN ACTIONS; TO AMEND SECTIONS 27-17-499, 27-19-155 AND 27-33-61, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING AMENDMENTS; TO BRING FORWARD SECTION 27-35-309, MISSISSIPPI CODE OF 1972, WHICH PROVIDES CERTAIN AUTHORITY TO THE ATTORNEY GENERAL TO FILE CERTAIN ACTIONS, FOR PURPOSES OF AMENDMENT; TO AMEND SECTIONS 27-35-325, 27-41-83 AND 27-41-85, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING SECTIONS; TO BRING FORWARD SECTION 27-41-87, MISSISSIPPI CODE OF 1972, WHICH PROVIDES CERTAIN AUTHORITY TO THE ATTORNEY GENERAL TO FILE SUIT; TO AMEND SECTIONS 27-45-21 AND 27-65-81, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING SECTIONS; TO BRING FORWARD SECTION 27-73-1, MISSISSIPPI CODE OF 1972, WHICH PROVIDES CERTAIN AUTHORITY TO THE ATTORNEY GENERAL TO FILE CERTAIN ACTIONS, FOR PURPOSES OF AMENDMENT; TO AMEND SECTIONS 27-75-13 AND 27-75-15, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING AMENDMENTS; TO BRING FORWARD SECTION 27-77-15, MISSISSIPPI CODE OF 1972, WHICH PROVIDES CERTAIN AUTHORITY TO THE ATTORNEY GENERAL TO FILE CERTAIN ACTIONS, FOR PURPOSES OF AMENDMENT; TO BRING FORWARD SECTION 29-1-7, MISSISSIPPI CODE OF 1972, WHICH PROVIDES CERTAIN AUTHORITY TO THE ATTORNEY GENERAL TO FILE CERTAIN ACTIONS; TO AMEND SECTIONS 29-1-137, 29-3-9, 27-104-29, 27-105-25, 31-7-127, 31-17-59, 31-19-25, 37-37-21, 37-41-25, 37-43-45, 37-51-17, 37-101-241, 37-101-279, 37-101-291, 37-101-292, 37-101-293, 37-151-107, 39-3-201, 39-7-37, 41-7-79, 41-9-35, 41-51-33, 41-71-21, 43-11-27 AND 43-13-145, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING SECTIONS; TO BRING FORWARD SECTIONS 37-135-31, 43-13-221, 43-25-101 AND 71-5-529, MISSISSIPPI CODE OF 1972, WHICH PROVIDES CERTAIN AUTHORITY TO THE ATTORNEY GENERAL TO BRING CERTAIN ACTIONS, FOR PURPOSES OF AMENDMENT; TO AMEND SECTIONS 43-15-6, 43-15-121, 43-16-21, 43-20-21, 45-9-53, 45-12-11, 45-14-27 AND 47-5-75, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING SECTIONS; TO BRING FORWARD SECTIONS 47-5-901, 47-5-903, 47-5-1219, 57-64-23, 75-24-27 AND 75-75-19, MISSISSIPPI CODE OF 1972, WHICH PROVIDES FOR CERTAIN AUTHORITY OF THE ATTORNEY GENERAL TO FILE CERTAIN ACTIONS, FOR PURPOSES OF AMENDMENT; TO AMEND SECTIONS 49-4-21, 49-17-71, 49-27-51, 53-3-19, 53-9-67, 55-13-21, 57-1-29, 63-17-85, 63-21-39, 67-1-89, 69-2-15, 69-23-11, 69-35-27, 71-5-17, 73-6-29, 73-15-35, 73-25-101, 75-15-11, 75-21-1, 75-21-7, 75-21-37, 75-24-9, 75-24-15, 75-24-19, 75-24-21, 75-24-29, 75-24-59, 75-24-355, 75-60-21, 75-76-87, 75-76-145, 75-76-147, 75-91-7, 77-1-43, 77-2-11, 77-3-611, 79-11-133, 79-11-509, 79-11-519, 79-13-1105, 79-14-1012, 79-29-1017, 81-1-67, 81-19-9, 81-22-17, 83-29-45, 83-37-31, 83-49-31, 83-69-1, 85-11-19, 91-8-1014, 95-3-5, 95-3-13 AND 97-21-101, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING SECTIONS; TO BRING FORWARD SECTIONS 97-32-5 AND 97-37-7, MISSISSIPPI CODE OF 1972, WHICH PROVIDES CERTAIN AUTHORITY FOR THE ATTORNEY GENERAL TO FILE CERTAIN ACTIONS, FOR PURPOSES OF AMENDMENT; TO AMEND SECTIONS 97-33-109, 97-43-9, 97-44-5, 97-45-2, 99-27-31, 99-29-9 AND 99-38-11, MISSISSIPPI CODE OF 1972, FOR PURPOSES OF AMENDMENT; TO BRING FORWARD SECTION 99-41-13, MISSISSIPPI CODE OF 1972, WHICH PROVIDES CERTAIN AUTHORITY FOR THE ATTORNEY GENERAL TO FILE CERTAIN ACTIONS, FOR PURPOSES OF AMENDMENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 7-5-1, Mississippi Code of 1972, is amended as follows:
7-5-1. The Attorney General provided for by Section 173 of the Mississippi Constitution shall be elected at the same time and in the same manner as the Governor is elected. His term of office shall be four (4) years and his compensation shall be fixed by the Legislature. He shall be the chief legal officer and advisor for the state, both civil and criminal, and is charged with managing all litigation on behalf of the state, except as otherwise specifically provided by law. No arm or agency of the state government shall bring or defend a suit against another arm or agency without prior written approval of the Attorney General. He shall intervene and argue the constitutionality of any statute when notified of a challenge thereto, pursuant to the Mississippi Rules of Civil Procedure. His qualifications for office shall be as provided for chancery and circuit judges in Section 154 of the Mississippi Constitution. He shall have the powers of the Attorney General at common law and, except as otherwise provided by law, is given the sole power to bring or defend a lawsuit on behalf of a state agency, the subject matter of which is of statewide interest, subject to the following limitations:
In matters wherein the amount reasonably sought to be recovered by the state or arm or agency thereof exceeds the sum of Two Hundred Fifty Thousand Dollars ($250,000.00) inclusive of attorney's fees, interest and costs, the Attorney General shall not file suit or otherwise assert such a claim or cause of action or employ special or outside counsel to file such suit or otherwise assert such a claim or cause or action, without the prior written approval of the Outside Counsel Oversight Commission as defined and provided for in Section 7-5-8.
SECTION 2. Section 7-5-8, Mississippi Code of 1972, is amended as follows:
7-5-8. (1) Before entering into a contingency fee contract with outside counsel, the state, an arm or agency of the state, or a statewide elected officer acting in his official capacity must first make a written determination that contingency fee representation is both cost-effective and in the public interest. The required written determination shall include specific findings for each of the following factors:
(a) Whether there exist sufficient and appropriate legal and financial resources within the Attorney General's office to handle the matter.
(b) The time and labor required; the novelty, complexity, and difficulty of the questions involved; and the skill requisite to perform the attorney services properly.
(c) The geographic area where the attorney services are to be provided.
(d) The amount of experience desired for the particular kind of attorney services to be provided and the nature of the outside attorney's experience with similar issues or cases.
(2) (a) The state, an arm or agency of the state, or a statewide elected officer acting in his official capacity may not enter into a contingency fee contract that provides for the outside attorney to receive a contingency fee, exclusive of reasonable costs and expenses incurred in connection with the case, which is in excess of the following:
(i) Twenty-five percent (25%) of any recovery of up to Ten Million Dollars ($10,000,000.00); plus
(ii) Twenty percent (20%) of any portion of such recovery between Ten Million Dollars ($10,000,000.00) and Fifteen Million Dollars ($15,000,000.00); plus
(iii) Fifteen percent (15%) of any portion of such recovery between Fifteen Million Dollars ($15,000,000.00) and Twenty Million Dollars ($20,000,000.00); plus
(iv) Ten percent (10%) of any portion of such recovery between Twenty Million Dollars ($20,000,000.00) and Twenty-five Million Dollars ($25,000,000.00); plus
(v) Five percent (5%) of any portion of such recovery exceeding Twenty-five Million Dollars ($25,000,000.00).
(b) Except as provided in subsection (3) of this section, a contingency fee shall not exceed an aggregate of Fifty Million Dollars ($50,000,000.00), exclusive of reasonable costs and expenses incurred in connection with the case, and irrespective of the number of lawsuits filed or the number of attorneys retained to achieve the recovery.
(c) A contingency fee shall not be based on penalties or civil fines awarded or any amounts attributable to penalties or civil fines.
(3) The limits on fees set forth in subsection (2) of this section shall not apply if:
(a) The state, an arm or agency of the state, or a statewide elected officer acting in his official capacity makes a written determination stating the reasons why a greater fee is necessary, proper, and in the best interests of the state in a particular case; and
(b) The Outside Counsel Oversight Commission approves any terms of the contingency contract that exceed the limits set forth in subsection (2) of this section.
(4) The Outside Counsel Oversight Commission shall consist of the Governor, the Lieutenant Governor, and the Secretary of State; actions of the commission shall be taken by majority vote. Appeal from a decision of the Outside Counsel Oversight Commission shall be to any court of competent jurisdiction.
(5) (a) Copies of any executed contingency fee contract and the applicable written determination to enter into a contingency fee contract with the outside attorney shall be posted on the Attorney General's website for public inspection within five (5) business days after the date the contract is executed unless the state, arm or agency of the state, or statewide elected officer retaining outside counsel makes a determination, subject to the approval of the Outside Counsel Oversight Commission, that to do so would negatively affect the state's interest, and shall remain posted on the website for the duration of the contingency fee contract, including any extensions or amendments to the contract.
(b) If the determination is made and duly approved that posting the contract will negatively affect the interests of the state, the contract will be posted on the Attorney General's website within five (5) days of the occurrence of the earliest of the following:
(i) Filing of the lawsuit for which the contract was executed;
(ii) Entry of appearance for any pending matter for which the contract was executed; or
(iii) From the time the outside attorney engages in any substantive action on behalf of the state relative to the subject matter for which the contract was executed.
(c) Any payment of contingency fees shall be posted on the Attorney General's website within fifteen (15) days after the payment of the contingency fees to the outside attorney and shall remain posted on the website for at least one (1) year after the date payment is made.
(6) An outside attorney under contract to provide services to the state on a contingency fee basis shall, from the inception of the contract until not less than four (4) years after the contract expires or is terminated, maintain detailed current records, including documentation of all expenses, disbursements, charges, credits, underlying receipts and invoices, and other financial transactions that concern the providing of attorney services. In addition, the outside attorney shall maintain detailed contemporaneous time records for the attorneys and paralegals working on the matter in increments of no greater than one-tenth (1/10) of an hour, and shall promptly provide these records to the Attorney General upon request.
(7) (a) If an arm or agency of the state or a statewide elected officer contracts for outside legal counsel pursuant to Section 7-5-39(3) on a contingency fee basis, the arm or agency of the state or the statewide elected officer shall provide complete and timely information to the Office of the Attorney General as to every requirement of this section for inclusion in the report under this section. The Office of the Attorney General shall post the information as received on its website within five (5) days of receipt.
(b) The arm or agency of the state or statewide elected official responsible for retaining outside counsel shall provide complete and timely information to the Office of the Attorney General as to every requirement of Section 7-5-21 for inclusion in the docket required by that section.
(8) Approval of the Outside Counsel Oversight Commission is required for any claim or cause of action where the amount sought, inclusive of attorney's fees, cost and interest, exceeds Two Hundred Fifty Thousand Dollars ($250,000.00) as required in Section 7-5-1.
SECTION 3. Section 1-1-9, Mississippi Code of 1972, is amended as follows:
1-1-9. (1) Copyrights of the Mississippi Code of 1972 and the notes, annotations, and indexes thereof, shall be taken by and in the name of the publishers of the compilation who shall thereafter promptly assign the same to the State of Mississippi and be owned by it.
(2) All parts of any act passed by the Mississippi Legislature, or of any code published or authorized to be published by the Joint Committee on Compilation, Revision and Publication of Legislation, including, without limitation, catchlines or frontal analyses; numbers assigned to sections, articles, chapters and titles; historical citations or source lines; editor's notes; amendment notes; cross references; annotations; and summaries of judicial decisions and Attorney General's opinions, shall become and remain the exclusive property of the State of Mississippi, to be used only as the joint committee may direct.
(3) (a) If any person or entity uses any part of any act passed by the Mississippi Legislature, or any part of any code published or authorized to be published by the joint committee, in any manner other than as authorized by the committee, the person or entity shall be subject to a civil penalty of not less than One Thousand Dollars ($1,000.00) for each violation, and each day upon which a violation occurs shall be deemed a separate and additional violation.
(b) If the joint committee suspects that any person or entity is violating or has violated this section, the Attorney General shall investigate the matter upon the request of the joint committee. If the Attorney General determines, after investigation, that the person or entity is violating or has violated this section, the Attorney General shall institute an action, subject to the provisions of Sections 1 and 2 of this act, to impose a civil penalty against the person or entity, or seek injunctive relief against the person or entity to prevent further violations of this section, or both, as requested by the joint committee.
(c) Civil penalties may be recovered in a civil action brought by the Attorney General in the Chancery Court of the First Judicial District of Hinds County, Mississippi, or in the chancery court of the county of residence of the person or entity against whom the penalty is sought. If the person or entity is a nonresident of the State of Mississippi, the action shall be brought in the Chancery Court of the First Judicial District of Hinds County, Mississippi.
(d) All civil penalties recovered shall be deposited into the State General Fund.
SECTION 4. Section 1-1-11, Mississippi Code of 1972, is amended as follows:
1-1-11. (1) Except as provided in subsection (2) of this section, the Joint Committee on Compilation, Revision and Publication of Legislation shall distribute or provide for the distribution of the sets of the compilation of the Mississippi Code of 1972 purchased by the state as follows:
Fifty-seven (57) sets to the Mississippi House of Representatives and forty (40) sets to the Mississippi Senate for the use of the Legislative Reference Bureau, Legislative Services Offices, staffs and committees thereof.
Ten (10) sets to the Governor's Office; nine (9) sets to the Secretary of State; and twenty (20) sets to the Auditor's Office.
One (1) set to each of the following: the Lieutenant Governor; each member of the Legislature; the Treasurer; each district attorney; each county attorney; each judge of the Court of Appeals and each judge of the Supreme, circuit, chancery, county, family, justice and municipal courts; each Mississippi Senator and Mississippi Representative in Congress; State Superintendent of Education; Director of the Department of Finance and Administration; six (6) sets to the Performance Evaluation and Expenditure Review (PEER) Committee; three (3) sets to the Director of the Legislative Budget Office; the Commissioner of Agriculture and Commerce; each Mississippi Transportation Commissioner; six (6) sets to the Department of Corrections; the Insurance Commissioner; the Clerk of the Supreme Court; the State Board of Health; each circuit clerk; each chancery clerk in the state for the use of the chancery clerk and the board of supervisors; each sheriff in the state for the use of his office and the county officers; and each county for the county library (and an additional set shall be given to each circuit clerk, chancery clerk, sheriff and county library in counties having two (2) judicial districts).
Two (2) sets to the Department of Archives and History; two (2) sets to the State Soil and Water Conservation Commission; sixty-eight (68) sets to the Attorney General's office; six (6) sets to the Public Service Commission; four (4) sets to the Public Utilities Staff; thirty-five (35) sets to the Department of Revenue; one (1) set to the Board of Tax Appeals; two (2) sets to the State Personnel Board; six (6) sets to the State Law Library; one (1) set to the Library of Congress; ten (10) sets to the University of Mississippi Law School; one (1) set each to the Mississippi School for the Deaf and the Mississippi School for the Blind; one (1) set each to the University of Mississippi, Mississippi State University, Mississippi University for Women, University of Southern Mississippi, Delta State University, Alcorn State University, Jackson State University, Mississippi Valley State University, and the Board of Trustees of State Institutions of Higher Learning; and one (1) set to the Supreme Court judges' conference room. In furtherance of the State Library's reciprocal program of code exchange with libraries of the several states, the joint committee shall, at the direction and only upon the written request of the State Librarian, distribute or provide for the distribution of sets of the code to such libraries.
One (1) set to each state junior or community college; three (3) sets to the Department of Wildlife, Fisheries and Parks; two (2) sets to the Department of Environmental Quality; two (2) sets to the Department of Marine Resources; two (2) sets to the Mississippi Ethics Commission; six (6) sets to the Mississippi Workers' Compensation Commission; four (4) sets to the State Department of Rehabilitation Services; and seven (7) sets to the Department of Human Services. One (1) set to each of the following: State Textbook Procurement Commission; University Medical Center; State Library Commission; Department of Agriculture and Commerce; Forestry Commission; and seventeen (17) sets to the Department of Public Safety. Also, one (1) set to each of the following: Adjutant General, Mississippi Development Authority, Department of Banking and Consumer Finance, Bureau of Building, Grounds and Real Property Management, the State Educational Finance Commission, the Mississippi Board of Vocational and Technical Education, Division of Medicaid, State Board of Mental Health, and Department of Youth Services.
The joint committee is authorized to distribute or provide for the distribution of additional sets of the Mississippi Code, not to exceed three (3) sets, to the office of each district attorney for the use of his assistants.
The joint committee shall provide to the Mississippi House of Representatives and the Mississippi Senate the annual supplements to the Mississippi Code of 1972 for each set of the code maintained by the House and Senate.
The set of the Mississippi Code of 1972 to be provided to each member of the Legislature shall be provided unless specifically waived by such legislator in writing.
An elected or appointed officeholder in the State of Mississippi, except for a member of the Legislature, shall deliver to his successor in office, or to the joint committee if there is no successor, the set of the Mississippi Code of 1972 provided the officeholder under this section.
Before the joint committee delivers or provides for delivery of a copy of the Mississippi Code of 1972 to an individual officeholder, the joint committee shall prepare and submit a written agreement to the officeholder. The agreement shall, among other provisions, state that the code is the property of the State of Mississippi, that it shall be transferred to the officeholder's successor in office, that the officeholder has an obligation to make such transfer and that the officeholder shall be responsible for the failure to deliver the code and for any damage or destruction to the code, normal wear and tear excepted. The joint committee shall execute the agreement and forward it to the officeholder for execution. The joint committee shall not deliver or provide for delivery of the code to the officeholder until the executed agreement is received by the committee. The joint committee may include in the agreement such other provisions as it may deem reasonable and necessary. In addition to damages or any other remedy for not transferring a set of the code to his successor, an officeholder who does not transfer his set of the code shall be guilty of a misdemeanor and shall, upon conviction, pay a fine of One Thousand Dollars ($1,000.00). Upon request of the joint committee, the Attorney General shall assist the joint committee in taking such actions as necessary, subject to the provisions in Sections 1 and 2 of this act, to require an officeholder to transfer the set of code provided under this section to his successor, or to the joint committee if there is no successor, and to recover reimbursement or damages from any officeholder for the loss of or damage or destruction to any volumes of the set of the code provided under this section, other than normal wear and tear.
Replacement of missing, damaged or destroyed sets or volumes of the code provided by this chapter may be obtained from the code publisher through the joint committee at the established state cost, the cost to be borne by the recipient.
No more than one (1) set of the Mississippi Code of 1972 shall be furnished to any one (1) individual, regardless of the office or offices he may hold.
(2) (a) The joint committee, in its discretion, may determine whether electronic access to the Mississippi Code of 1972 is available and a sufficient substitute for actual bound volumes of the code and, if so, may omit furnishing any one or more sets otherwise required by this section.
(b) Each elected state official, elected state district official and member of the Legislature shall receive a CD-ROM version of the Mississippi Code of 1972 in lieu of bound volumes of the Mississippi Code of 1972 unless the official or member of the Legislature makes a request in writing to the Joint Committee on Compilation, Revision and Publication of Legislation that he receive bound volumes of the Mississippi Code of 1972.
SECTION 5. Section 1-1-103, Mississippi Code of 1972, is amended as follows:
1-1-103. (1) There is created the Joint Legislative Committee on Compilation, Revision and Publication of Legislation, which is hereinafter referred to as the "joint committee." The joint committee shall be composed of the Speaker of the House of Representatives, the Lieutenant Governor of the State of Mississippi, the Speaker Pro Tempore of the House of Representatives, the President Pro Tempore of the Mississippi State Senate, the Chairman of the Rules Committee of the House of Representatives, the Chairman of the Senate Rules Committee, four (4) members of the House of Representatives to be named by the Speaker of the House, and four (4) members of the Senate to be named by the Lieutenant Governor. If any ex officio member of the joint committee holds two (2) positions entitling him to membership on the committee, the Speaker of the House or the Lieutenant Governor, as the case may be, shall appoint another member of the respective house to membership on the committee. The chairmanship of the committee shall alternate for twelve-month periods, beginning on May 1 of each year, between the Speaker of the House of Representatives and the Lieutenant Governor, with the Speaker of the House of Representatives serving as the first chairman. In the absence of the Chairman of the House Rules Committee or of the Senate Rules Committee, the vice chairman of that committee shall be entitled to attend; if the vice chairman is unable to attend or if an appointed member is unable to attend, another legislator may be designated to attend by the Speaker of the House or the Lieutenant Governor, as the case may be. If the Speaker of the House or the Lieutenant Governor is unable to attend a meeting, he may designate a legislator to substitute for him at that meeting. Any person serving as such a designated proxy shall have a vote at the meeting he was selected to attend and also when attending, shall receive compensation and expenses in the same manner and amount as regular members of the joint committee.
There shall be no business transacted, including adoption of rules of procedure, without the presence of a quorum of the joint committee. A quorum shall be eight (8) members, to consist of four (4) members from the House of Representatives and four (4) members from the Senate. No action shall be valid unless approved by the majority of those members present and voting, entered upon the minutes of the joint committee and signed by the chairman and vice chairman.
(2) In addition to their legislative salaries as provided by law, the members of the committee shall receive per diem as authorized by law for their services in carrying out the duties of the committee and, in addition thereto, shall receive a daily expense allowance equal to the maximum daily expense rate allowable to employees of the federal government for travel in the high rate geographical area of Jackson, Mississippi, as may be established by federal regulations, including mileage as authorized by Section 25-3-41. However, in no case shall the members of the committee draw per diem while the Legislature is in regular or special session, except that members may receive the per diem and expenses authorized by this section when the Legislature is in session but in recess under the terms of a concurrent resolution, or in recess during a special session.
(3) The committee shall meet at least one (1) time during the interim that the Legislature is not in regular session, and the chairman may call additional meetings at such times as he deems necessary or advisable.
(4) All expenses incurred by and on behalf of the committee shall be paid from funds appropriated therefor, or from a sum to be provided in equal portion from the contingency funds of the House of Representatives and the Senate.
(5) Upon the request of the joint committee, the Attorney General shall provide legal assistance or legal representation to the committee on any matter within the jurisdiction of the committee, including bringing suits on behalf of the committee, subject to the provisions of Sections 1 and 2 of this act, and representing the committee in any suits brought against the committee.
SECTION 6. Section 5-3-57, Mississippi Code of 1972, is amended as follows:
5-3-57. The committee shall have the following powers:
(a) To conduct, in any manner and at any time deemed appropriate, a performance evaluation of all agencies. It may examine or investigate the budget, files, financial statements, records, documents or other papers of the agency deemed necessary by the committee.
(b) To conduct, in any manner and at any time deemed appropriate, a review of the budget, files, financial statements, records, documents or other papers, as deemed necessary by the committee, of any agency; to make selected review of any funds expended and programs previously projected by such agency; to investigate any and all salaries, fees, obligations, loans, contracts, or other agreements or other fiscal function or activity of any official or employee thereof (including independent contractors where necessary); and to do any and all things necessary and incidental to the purposes specifically set forth in this section.
(c) To conduct an investigation of all agencies which are, in whole or in part, operated or supported by any appropriation or grant of state funds, or which are, in whole or in part, supported or operated by any funds derived from any statewide tax, license fee, or permit fee or which collects or administers any statewide tax, license fee, or permit fee by whatever name called; such committee shall also have full and complete authority to investigate all laws administered and enforced by any such offices, departments, agencies, institutions and instrumentalities, and the manner and method of the administration and enforcement of such laws; to investigate any evasion of any statewide tax, privilege fee or license fee; to investigate all disbursements of public funds by any office, agency, department, institution or instrumentality specified herein; to study the present laws relative to such agencies, offices, departments, institutions and instrumentalities, and the laws providing for the levying or imposition and collection of any state tax, privilege fee or license fee; to make recommendations to the Legislature as to the correction of any imperfections, inequalities or injustices found to exist in any of such laws, and to do any and all things necessary and incidental to the purposes herein specifically set forth. Provided further that the committee shall upon petition by one-half (1/2) the elected membership of either the Senate or House of Representatives perform a complete investigation and audit of any agency, entity or group subject to investigation or audit by passage of Sections 5-3-51 through 5-3-69.
(d) The committee, in its discretion, if it determines that such action is necessary to carry out the responsibilities of Sections 5-3-51 through 5-3-69, may employ an attorney or attorneys to file or subject to the provisions of Sections 1 and 2 of this act, assist the Attorney General's office in filing actions for the recovery of any funds discovered to have been misused or misappropriated and to prosecute or assist in prosecution of criminal violations, if any, revealed or discovered in the discharging of their duties and responsibilities.
SECTION 7. Section 7-1-5, Mississippi Code of 1972, is amended as follows:
7-1-5. In addition to the powers conferred and duties imposed on the Governor by the Constitution and by the laws as elsewhere provided, he shall have the powers and perform the duties following:
(a) He is the supreme executive officer of the state.
(b) He is the commander in chief of the militia of the state and may call out the militia to execute the laws, to suppress insurrections or riots, and to repel invasions.
(c) He shall see that the laws are faithfully executed.
(d) He is to supervise the official conduct of all executive and ministerial officers.
(e) He is to see that all offices are filled and the duties of the offices are performed or, in default thereof, apply such remedy as the law allows; and if the remedy is inadequate, he shall inform the Legislature at its next session.
(f) He shall make appointments and fill vacancies as prescribed by law.
(g) Whenever any suit or legal proceeding is pending that affects the title of the state to any property, or that may result in any claim against the state, he may direct the Attorney General to appear on behalf of the state and protect its interest, subject to the provisions of Sections 1 and 2 of this act.
(h) He may require the Attorney General, or district attorney of any district, to inquire into the affairs or management of any corporation existing under the laws of this state, or doing business in this state under the laws of the state.
(i) He may require the Attorney General to aid any district attorney in the discharge of his duties.
(j) He may offer rewards, not exceeding Two Hundred Dollars ($200.00), for persons with mental illness who have escaped and are dangerous, and such other rewards as are authorized by law.
(k) He may require any officer or board to make special reports to him upon demand in writing.
(l) He shall transact all necessary business with state officers, shall require them to be present at their respective offices at all reasonable business hours, and may require information, in writing, from any such officer relating to the duties of his office.
(m) When deemed advisable upon proceedings for the arrest in this state of fugitives from justice from other states or countries, he may commission a special officer to arrest the fugitive in any part of the state.
(n) He may bring any proper suit affecting the general public interests, in his own name for the State of Mississippi, if after first requesting the proper officer so to do, the officer refuses or neglects to do the same.
SECTION 8. Section 7-3-47, Mississippi Code of 1972, is amended as follows:
7-3-47. (1) On or before April 20 of each year, the Secretary of State shall notify by mail every constable being compensated in whole or in part on a fee basis who has failed to file the report required by Section 7-3-45; and on or before May 15 of each year, he will notify the Attorney General of the ones of same by name who still have not filed such report, and the Attorney General shall thereupon prosecute such delinquent officers. If such report is not made by July 1 of the year, injunctive action and discovery in the chancery court of the residence of any such delinquent officer shall lie, and the Attorney General shall prosecute an action or actions in such court to obtain the proper information for each delinquent report, subject to the provisions of Sections 1 and 2 of this act.
(2) Failure on the part of any such officer to file such report by May 15 or evasion of the cited section, either by failure to report properly or by false entry, shall constitute a misdemeanor and shall be punishable by a fine of not less than One Hundred Dollars ($100.00) nor more than Five Hundred Dollars ($500.00), or by imprisonment for not less than thirty (30) days nor more than six (6) months, or by both such fine and imprisonment as the court may direct.
(3) If any such constable compensated by fees shall fail to file such report by May 1 in any year, all fees, salaries, and other remuneration collected by such official from May 1 until the date when such report is filed shall be forfeited to the general fund of the county. Any such official going out of office at the end of his or her term shall be liable on his or her official bond for the refund of all allowances, fees, salaries, or other remuneration received by him or her from the county treasury during the last year of his or her term of office, if such report is not filed with the Secretary of State by May 1 of the following year.
SECTION 9. Section 7-5-5, Mississippi Code of 1972, is amended as follows:
7-5-5. (1) The Attorney General shall appoint nine (9) competent attorneys, each of whom shall be designated as an assistant Attorney General. The assistants shall each possess all of the qualifications required by law of the Attorney General and shall have power and authority under the direction and supervision of the Attorney General to perform all of the duties required by law of that officer; and each shall be liable to the pains and penalties to which the Attorney General is liable. The assistants shall serve at the will and pleasure of the Attorney General, and they shall devote their entire time and attention to the duties pertaining to the department of justice as required by the general laws. The compensation of all assistants authorized by law shall be fixed by the Attorney General not to exceed the compensation fixed by law.
(2) (a) The Attorney General shall designate three (3) of the assistant attorneys general authorized under subsection (1) of this section to devote their time and attention primarily to defending and aiding in the defense in all courts of any suit, filed or threatened, against the State of Mississippi, against any subdivision thereof, or against any agency or instrumentality of the state or subdivision, including all elected officials and any other officer or employee thereof, subject to the provisions of Sections 1 and 2 of this act. When the circumstances permit, the assistants may perform any of the Attorney General's powers and duties, including, but not limited to, engaging in lawsuits outside the state when in his opinion this would help bring about the equal application of federal laws and court decisions in every state and guaranteeing equal protection of the laws as guaranteed every citizen by the United States Constitution.
(b) The Attorney General may employ outside counsel as special assistant attorneys general on a fee or contract basis; the Attorney General shall be the sole judge of the compensation in such cases except as otherwise provided in Section 7-5-8.
(i) Any contract for services of outside counsel shall require current and complete written time and expense records that describe in detail the time, in increments of no greater than one tenth (1/10) of an hour, and money spent each day in performance of the contract.
(ii) On conclusion of the matter for which the outside legal services were obtained, outside counsel shall provide a complete written statement of all fees and expenses, and the final complete time and expense records.
(3) The Attorney General may discharge any assistant Attorney General or special assistant Attorney General at his pleasure and appoint another in his stead. The assistant attorneys general shall devote their entire time and attention to the duties pertaining to the Department of Justice under the control and supervision of the Attorney General.
SECTION 10. Section 7-5-7, Mississippi Code of 1972, is amended as follows:
7-5-7. (1) The Governor may engage outside counsel on a noncontingent fee basis to assist the Attorney General in cases to which the state is a party when, in his opinion, the interest of the state requires it, subject to the action of the Legislature in providing compensation for such services not to exceed recognized bar rates for similar services.
(2) (a) The Attorney General is hereby authorized and empowered to appoint and employ outside counsel, on a fee or salary basis not to exceed recognized bar rates for similar services, subject to the provisions of Sections 1 and 2 of this act, to assist the Attorney General in the preparation for, prosecution, or defense of any litigation in the state or federal courts or before any federal commission or agency in which the state is a party or has an interest. The Attorney General may designate the outside counsel as special assistant Attorney General.
(b) If the compensation agreed upon will be governed by a contingency fee contract, that contract must conform with the requirements of Section 7-5-8.
(3) The Attorney General may also employ special investigators on a per diem or salary basis, to be agreed upon at the time of employment, for the purpose of interviewing witnesses, ascertaining facts, or rendering any other services that may be needed by the Attorney General in the preparation for and prosecution of suits by or against the State of Mississippi, or in suits in which the Attorney General is participating on account of same being of statewide interest.
(4) The Attorney General may pay travel and other expenses of employees and appointees under this chapter in the same manner and amount as authorized by law for the payment of travel and expenses of state employees and officials.
(5) The compensation of appointees and employees under this chapter shall be paid out of the Attorney General's contingent fund, or out of any other funds appropriated to the Attorney General's office.
SECTION 11. Section 7-5-9, Mississippi Code of 1972, is amended as follows:
7-5-9. The Attorney General shall have the power to employ a suitable and competent person or persons who possess professional skill and/or expert knowledge when such employment shall be necessary in order to enable him to efficiently perform the official duties imposed upon him by law, and he may pay such person or persons reasonable compensation as may be agreed upon, provided such compensation shall not exceed the compensation usually paid for similar services by private employers of such persons, subject to the provisions of Sections 1 and 2 of this act. The compensation and necessary expenses of such employees shall be paid out of the Attorney General's contingent fund or out of funds especially appropriated for such purposes.
SECTION 12. Section 7-5-21, Mississippi Code of 1972, is brought forward as follows:
7-5-21. The Attorney General shall keep a docket of all causes in which he is required to appear, whether through his office or through outside counsel, which is a public record and must show the full style of the case, the cause number of the action, the county, district and court in which the causes have been instituted and tried, and whether the case is civil or criminal. If civil, the docket must show the nature of the demand, the stage of the proceedings, the name and address of any outside counsel, a description of the fee arrangement with any outside counsel, a memorandum of the judgment when prosecuted to judgment, any process issued thereon, whether satisfied or not, and if not satisfied, the return of the sheriff. If criminal, the docket must show the nature of the crime, the mode of prosecution, the stage of the proceedings, a memorandum of the sentence when prosecuted to a sentence, the execution thereof, if executed, and, if not executed, the reasons of delay or prevention.
SECTION 13. Section 7-5-35, Mississippi Code of 1972, is amended as follows:
7-5-35. When it may be necessary or proper for the enforcement or collection of any judgment or debt in favor of the state, or any officer thereof in his official capacity, or of any county, the Attorney General, subject to the provisions of Sections 1 and 2 of this act, shall institute and prosecute in behalf of the creditor a suit or suits to set aside and annul any conveyance or other device fraudulently made by the debtor, or anyone for him, to hinder, delay, or defraud the creditor.
SECTION 14. Section 7-5-37, Mississippi Code of 1972, is amended as follows:
7-5-37. The Attorney General shall, at the request of the Governor or other state officer, in person or by his assistant, prosecute suit on any official bond, or any contract in which the state is interested, upon a breach thereof, and prosecute or defend for the state all actions, civil or criminal, relating to any matter connected with either of the state offices, subject to the provisions of Sections 1 and 2 of this act. He may require the service or assistance of any district attorney in and about such matters or suits.
SECTION 15. Section 7-5-39, Mississippi Code of 1972, is amended as follows:
7-5-39. (1) Except as otherwise provided by law, the Attorney General shall represent the state, subject to the provisions of Sections 1 and 2 of this act, in person or by his assistant, as counsel in all suits against the state in other courts or the Supreme Court at the seat of government, and he shall, in like manner, act as counsel for any of the state officers in suits brought by or against them in their official capacity, touching any official duty or trust.
(2) No civil legal action on behalf of the state, any arm or agency of the state, or any statewide elected officer acting in his official capacity may be taken until seven (7) working days' written notice of the proposed legal action is given to the statewide elected officer or proper person in charge of the arm or agency unless irreparable injury to the state would result by waiting for the expiration of the seven-day period.
(3) (a) The Attorney General shall authorize retention of independent counsel from outside his office by an arm or agency of the state or a statewide elected officer acting in his official capacity if the Attorney General declines representation when requested.
(b) (i) The Attorney General shall authorize retention of independent counsel from outside his office by an arm or agency of the state or a statewide elected officer acting in his official capacity and shall withdraw from representation of the arm or agency of the state or the statewide elected officer if there is a significant disagreement with the Attorney General as to the legal strategy to be used in the matter, and the Outside Counsel Oversight Commission has first approved the retention of outside counsel.
(ii) If an arm or agency of the state or statewide elected officer acting in his official capacity retains outside counsel under this subsection (3), the counsel shall be selected by the arm or agency of the state or the statewide elected officer. Fees of counsel employed on a fee basis shall not exceed recognized bar rates for similar services; any contract for outside counsel employed on a contingency fee basis shall conform to the provisions of Section 7-5-8.
(4) The Attorney General may pursue the collection of any claim or judgment in favor of the state outside of the state.
SECTION 16. Section 7-5-41, Mississippi Code of 1972, is brought forward as follows:
7-5-41. In all suits against the State of Mississippi, any board, bureau, commission, or department thereof required to be defended by the Attorney General, a completed copy of the bill of complaint, declaration, or other original pleading shall be mailed by the plaintiff or complainant to the Attorney General, postage prepaid, properly addressed to him; and such original pleading shall bear a proper certificate to such effect when it is filed. No decree pro-confesso or default judgment shall be taken against such defendant.
SECTION 17. Section 7-5-43, Mississippi Code of 1972, is amended as follows:
7-5-43.
(1) In addition to all power and authority vested in the Attorney General of
the State of Mississippi by its constitution and statutes and all common law
power and authority which may be invested in or exercised by such Attorney
General as such, the Attorney General of the State of Mississippi and his
assistants and representatives are hereby authorized upon request made of him
to, * * *
render such services, subject to the provisions of Sections 1 and 2 of this
act, as the Attorney General may deem necessary to assist in advising and
in representing, either or both, all officers or employees of any county
district, county, or municipality of the State of Mississippi, or of the State
of Mississippi, or of any board, agency, or commission thereof, as the case may
be, or any circuit clerk or county registrar, should they or any of them be
investigated or called as a witness by the federal Civil Rights Commission, be
sued in an action at law or in equity, be prosecuted or cited to show cause or
charged with contempt, civil or criminal, or proceeded against in any manner,
either or all, in any state or federal court by the United States government,
by any agency, officer, department, or representative of the United States
government, or by any other person, either or all, as a result of the discharge
by any of said Mississippi county district, county, municipal, or State of
Mississippi officers or employees, boards, agencies, or commissions and the
members thereof, or by the said circuit clerk or county registrar of their
official duties under the Constitution and other laws of the State of
Mississippi, or growing out of such official action or nonaction, as the case
may be.
The foregoing authority vested in the Attorney General as above set out shall not apply to or with respect to any suit, action, hearing, or controversy which may arise between two (2) or more of the aforesaid officers or employees, circuit clerks or county registrars, such commissions, boards, or agencies or members thereof, or said county districts, counties, or municipalities of the State of Mississippi, or between them or by any of them and an agency or officer of the State of Mississippi which, under existing laws of the State of Mississippi, the Attorney General is otherwise authorized or required to represent.
(2) Any request made of the Attorney General for the assistance above referred to shall be made in writing and, if by an individual, shall be signed by him or her. If by a board or commission or agency as such, there shall be entered upon its minutes an order making such request, and the request from and on behalf of said board, commission, or agency to the Attorney General for said assistance shall be accompanied by a certified copy of said order.
SECTION 18. Section 7-5-45, Mississippi Code of 1972, is amended as follows:
7-5-45.
(1) In addition to all power and authority vested in the Attorney General of
the State of Mississippi by its constitution and statutes and all common law
power and authority which may be vested in or exercised by such Attorney
General as such, the Attorney General of the State of Mississippi and his
assistants and representatives are hereby authorized upon request made of him
to * * *,
subject to the provisions of Sections 1 and 2 of this act, render such
services as the Attorney General may deem necessary to assist in advising and
in representing, either or both, any officer or employee of any school
district, any agricultural high school and junior college, or any institution
of higher learning, the respective boards of trustees thereof, the members of
said boards of trustees, any school district, junior college district,
institution of higher learning, and any state officer, should they or any of
them be sued, prosecuted, or proceeded against in any manner in any action in
any state or federal court which, or the ultimate purpose of which, challenges
or seeks to invalidate any statute or provision of the Constitution of the
State of Mississippi dealing with the establishment, maintenance, operation,
control, financing, or determining what persons or pupils shall attend or be
enrolled in any or all of said schools or colleges or institutions of higher
learning, as violative of the constitution and laws of the United States of
America or the State of Mississippi, or should such officers, employees, and
members of such boards of trustees be investigated or called as a witness by
the federal Civil Rights Commission, cited to show cause, or charged with
contempt, civil or criminal, by any officer, agent, department, or court of the
United States government.
The foregoing authority vested in the Attorney General as above set out shall not apply to or with respect to any suit, action, hearing, or controversy which may arise between two (2) or more of the aforesaid officers or employees, boards or members thereof, school districts, colleges or institutions of higher learning, or between them or any of them and an agency or officer of the State of Mississippi which, under existing laws of the State of Mississippi, the Attorney General is otherwise authorized or required to represent.
(2) Any request made of the Attorney General for the assistance above referred to shall be made in writing and, if by an individual, shall be signed by him or her. If by a board as such, there shall be entered upon the minutes of such board an order making such request, and the request from or on behalf of said board to the Attorney General for said assistance shall be accompanied by a certified copy of said order.
SECTION 19. Section 7-5-47, Mississippi Code of 1972, is amended as follows:
7-5-47. The Attorney General or his assistant, when required by the Governor, shall institute suits, subject to the provisions of Sections 1 and 2 of this act, for the benefit of the state on the bond of any state officer in any case in which said officer has been guilty of any neglect or violation of his official duties.
SECTION 20. Section 7-5-51, Mississippi Code of 1972, is amended as follows:
7-5-51.
The Attorney General, as well as the several district attorneys, is hereby
authorized to institute or defend any suits arising out of any act or order of
the * * * Department of Revenue or the
Public Service Commission affecting the laws and revenues of the state, subject
to the provisions of Sections 1 and 2 of this act.
SECTION 21. Section 7-5-54, Mississippi Code of 1972, is amended as follows:
7-5-54. (1) In addition to the authority granted in Section 7-5-53, Mississippi Code of 1972, the Attorney General shall prosecute, subject to the provisions of Sections 1 and 2 of this act, in person or by his designated staff attorney, criminal matters and cases investigated by him pursuant to the provisions of Section 7-5-59, and he may request the services or assistance of any district attorney in and about such matters or suits. When requested by a district attorney and in the public interest, the Attorney General may, in person or by his designated staff attorney, assist the district attorney in the discharge of his duties. The Attorney General or his designated staff attorney shall have the same right as the district attorney to enter the grand jury room while the grand jury is in session and to perform such services with reference to the work of the grand jury as the district attorney is authorized by law to perform.
(2) The powers of the Attorney General under this section shall not diminish the powers of local authorities to investigate or prosecute any type of white-collar crime violation or any other criminal conduct within their respective jurisdictions, and the provisions of this section shall be in addition to the powers and authority previously granted the Attorney General by common, constitutional, statutory or case law.
SECTION 22. Section 7-5-55, Mississippi Code of 1972, is amended as follows:
7-5-55. The Attorney General, or any district attorney or county attorney at his request, may bring and prosecute any action, subject to the provisions of Sections 1 and 2 of this act, in the name of the state to recover the amount of any past due income, inheritance, and privilege taxes and penalties thereon, but any such action shall be brought in the county or district where the taxpayer resides. In case of a nonresident or foreign corporation, the action may be brought in any county where said nonresident or foreign corporation may now be sued in other cases.
SECTION 23. Section 7-5-59, Mississippi Code of 1972, is brought forward as follows:
7-5-59. (1) The following terms shall have the meanings ascribed to them herein unless the context requires otherwise:
(a) "Computer crimes" means those crimes defined in Chapter 45 of Title 97 and sex offenses involving a computer affecting children as defined in Chapter 5 of Title 97.
(b) "White-collar crime and official corruption" includes crimes chargeable under the following provisions of law:
(i) Paragraphs (b) and (c) of Section 7-5-59(4), which relates to obstruction of white-collar crime investigations.
(ii) Section 97-7-10, which relates to the defrauding of state and local governments.
(iii) Section 97-19-73, which relates to fraud by mail, wire, radio or television.
(iv) Section 97-9-10, which relates to commercial bribery.
(v) Section 97-45-3, which relates to computer fraud.
(vi) Sections 97-11-25 through 97-11-31, which relate to embezzlement by public officials.
(vii) Section 97-11-33, which relates to extortion by public officials.
(viii) Sections 97-19-5 through 97-19-31, which relate to unlawful procurement or use of credit cards.
(ix) Sections 97-23-1 and 97-23-3, which relate to false, misleading or deceptive advertising.
(x) Sections 97-15-3 and 97-15-5, which relate to bribery of members and employees of the Highway Commission and the defrauding of the state by Highway Commission members, employees or highway contractors.
(xi) Section 97-9-5, which relates to bribery of jurors.
(xii) Sections 97-11-11, 97-11-13 and 97-11-53, which relate to acceptance of bribes by public officials and bribery of public officials.
(xiii) Sections 97-13-1 and 97-13-3, which relate to bribery of electors or election officials.
(xiv) Sections 97-23-19 through 97-23-27, which relate to embezzlement.
(c) "White-collar crime investigations" means an investigation into any illegal act or acts defined as white-collar crime.
(d) "Computer crimes investigations" means an investigation into any illegal act or acts defined as computer crime.
(e) "Person" means and includes not only an individual, but also a partnership, corporation, professional firm, nonprofit organization or other business entity.
(2) The Attorney General is hereby authorized to conduct official corruption investigations and such other white-collar crime investigations and computer crime investigations that are of statewide interest or which are in the protection of public rights.
(3) (a) In conducting white-collar crime and computer crime investigations, the Attorney General shall have the authority to issue and serve subpoenas to any person in control of any designated documents for the production of such documents, including, but not limited to, writings, drawings, graphs, charts, photographs, phono-records, subscriber records and other data compilations from which information can be obtained, or translated through detection devices into reasonably usable form. Such subpoenas shall require the named person, his agent or attorney, to appear and deliver the designated documents to a location in the county of his residence unless the court for good cause shown directs that the subpoena be issued for the person to deliver such documents to a location outside of the county of his residence. Mere convenience of the Attorney General shall not be considered good cause. The Attorney General or his designee shall have the authority to inspect and copy such documents. Such subpoenas shall be issued only upon the ex parte and in camera application of the Attorney General to the circuit or chancery court of the county of residence of the person in control of the documents or the circuit or chancery court of the county where the person in control of the documents may be found, and only upon a showing that the documents sought are relevant to a criminal investigation under this act or may lead to the discovery of such relevant evidence. Thereafter said court shall have jurisdiction to enforce or quash such subpoenas and to enter appropriate orders thereon, and nothing contained in this section shall affect the right of a person to assert a claim that the information sought is privileged by law.
(b) A subpoena issued pursuant to this subsection shall be in substantially the following form:
"SUBPOENA TO PRODUCE DOCUMENTS PURSUANT TO AN
INVESTIGATION BY THE ATTORNEY GENERAL
TO:
YOU ARE HEREBY COMMANDED to appear before the Attorney General of the State of Mississippi or his designated staff attorney at the place, date and time specified below in an investigation being conducted by the Attorney General pursuant to Section 7-5-59, Mississippi Code of 1972:
Place ____________________ Date and Time ____________________
YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s).
________________________________________________________
You are advised that the _______ Court of the ________ Judicial District of _____________ County, Mississippi, has approved the ex parte and in camera application of the Attorney General to issue this subpoena, and jurisdiction to enforce and/or quash the subpoena and to enter appropriate orders thereon is statutorily vested in the said court; enforcement and penal provisions applicable to an Attorney General's investigation include those set forth in Section 7-5-59(4), Mississippi Code of 1972; and disclosure of testimony and/or records coming into possession of the Attorney General pursuant to this subpoena shall be limited by and subject to the provisions of Section 7-5-59(6), Mississippi Code of 1972, (for informational purposes, these cited statutes are reproduced on the reverse side of this subpoena).
You may wish to consult an attorney in regard to this subpoena. You have certain state and federal constitutional rights, including your protection against self-incrimination and unreasonable search and seizure which this subpoena may affect.
ISSUED BY AND UNDER SEAL OF THE ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI, this the ____ day of _____________, 20___.
(SEAL) _____________________________"
(c) Following service of any subpoena, pursuant to the provisions of this subsection, a record of the return shall be made and kept by the Attorney General and subject only to such disclosure as may be authorized pursuant to the provisions of this section.
(4) Enforcement and penal provisions applicable to an investigation under this section shall include the following:
(a) If a person who has been served with a subpoena, which has been issued and served upon him in accordance with the provisions of this section, shall fail to deliver or have delivered the designated documents at the time and place required in the subpoena, on application of the Attorney General the circuit or chancery court having approved the issuance of the subpoena may issue an attachment for such person, returnable immediately, or at such time and place as the court may direct. Bond may be required and fine imposed and proceedings had thereon as in the case of a subpoenaed witness who fails to appear in circuit or chancery court.
(b) Every person who shall knowingly and willfully obstruct, interfere with or impede an investigation under this section by concealing or destroying any documents, papers or other tangible evidence which are relevant to an investigation under this section shall be guilty of a felony and, upon conviction, shall be punished by a fine of not more than Five Thousand Dollars ($5,000.00) or by imprisonment for not more than five (5) years, or by both such fine and imprisonment.
(c) Every person who shall knowingly and willfully endeavor, by means of bribery, force or intimidation, to obstruct, delay or prevent the communication of information to any agent or employee of the Office of the Attorney General or who injures another person for the purpose of preventing the communication of such information or an account of the giving of such information relevant to an investigation under this section shall be guilty of a felony and, upon conviction, shall be punished by a fine of not more than Five Thousand Dollars ($5,000.00) or by imprisonment for not more than five (5) years, or by both such fine and imprisonment.
(d) The provisions of paragraphs (a), (b) and (c) of this subsection shall not prohibit the enforcement of, or prosecution under, any other statutes of this state.
(5) (a) If any person shall refuse, or is likely to refuse, on the basis of his privilege against self-incrimination, produce the designated documents as requested by a subpoena issued under this section or issued by a court, the Attorney General may request the court, ex parte and in camera, to issue an order requiring such person to produce the documents information which he refuses to give or provide on the basis of his privilege against self-incrimination. The Attorney General may request said order under this subsection when, in his judgment:
(i) The documents sought from such individual may be necessary to the public interest; and
(ii) Such individual has refused or is likely to refuse to produce the designated document on the basis of his privilege against self-incrimination.
Following such request, an order shall issue in accordance with this section requiring such person to produce the documents which he refuses to produce on the basis of his privilege against self-incrimination.
(b) Whenever a witness refuses, on the basis of his privilege against self-incrimination, to produce documents, and the court issues to the witness an order under paragraph (a) of this subsection, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination, but no documents or information compelled under the aforesaid order, or any information directly or indirectly derived from such documents may be used against the witness in any criminal proceeding, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.
(6) Documents in the possession of the Attorney General gathered pursuant to the provisions of this section and subpoenas issued by him shall be maintained in confidential files with access limited to prosecutorial and other law enforcement investigative personnel on a "need-to-know" basis and shall be exempt from the provisions of the Mississippi Public Records Act of 1983, except that upon the filing of an indictment or information, or upon the filing of an action for recovery of property, funds or fines, such documents shall be subject to such disclosure as may be required pursuant to the applicable statutes or court rules governing the trial of any such judicial proceeding.
(7) No person, including the Attorney General, a member of his staff, prosecuting attorney, law enforcement officer, witness, court reporter, attorney or other person, shall disclose to an unauthorized person documents, including subpoenas issued and served, gathered by the Attorney General pursuant to the provisions of this section, except that upon the filing of an indictment or information, or upon the filing of an action for recovery of property, funds or fines, or in other legal proceedings, such documents shall be subject to such disclosure as may be required pursuant to applicable statutes and court rules governing the trial of any such judicial proceeding. In event of an unauthorized disclosure of any such documents gathered by the Attorney General pursuant to the provisions of this section, the person making any such unauthorized disclosure shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine of not more than One Thousand Dollars ($1,000.00) or imprisonment of not more than six (6) months, or by both such fine and imprisonment.
(8) The powers of the Attorney General under this section shall not diminish the powers of local authorities to investigate or prosecute any type of white-collar crime violation, computer crime violation or any other criminal conduct within their respective jurisdictions, and the provisions of this section shall be in addition to the powers and authority previously granted the Attorney General by common, constitutional, statutory or case law.
(9) No person, agent or employee upon whom a subpoena is served pursuant to this section shall disclose the existence of the investigation to any person unless such disclosure is necessary for compliance with the subpoena. Any person who willfully violates this subsection shall be guilty of a misdemeanor and may be confined in the county jail for a period not to exceed one (1) year or fined not more than Ten Thousand Dollars ($10,000.00), or both.
SECTION 24. Section 7-5-66, Mississippi Code of 1972, is amended as follows:
7-5-66. The Attorney General is hereby authorized, in his discretion, and on a case-by-case basis, to prepay all such court costs and filing fees, as are otherwise required of private litigants, when commencing and prosecuting civil actions for the collection and recovery of delinquent sums owed to the Mississippi Guarantee Student Loan Program, subject to the provisions of Sections 1 and 2 of this act.
SECTION 25. Section 7-7-204, Mississippi Code of 1972, is amended as follows:
7-7-204. (1) Within the limits of the funds available to the Office of the State Auditor for such purpose, the State Auditor may grant a paid internship to students pursuing junior or senior undergraduate-level year coursework toward a bachelor's degree in accounting or graduate-level coursework toward a master's degree in accounting. Those applicants deemed qualified shall receive funds that may be used to pay for tuition, books and related fees to pursue their degree. It is the intent of the Legislature that the paid internship program (hereinafter referred to as the program) shall be used as an incentive for accounting students to develop job-related skills and to encourage accounting careers at the Office of the State Auditor.
(2) In order to be eligible for the program, an applicant must:
(a) Attend any college or school approved and designated by the Office of the State Auditor.
(b) Satisfy the following conditions:
(i) Undergraduate stipulations: Applicants must have successfully obtained a minimum of fifty-eight (58) semester hours toward a bachelor of science degree in accounting from a Mississippi institution of higher learning.
Applicants must have achieved a minimum grade point average (GPA) on the previously obtained semester hours toward a bachelor of science degree in accounting of 3.0 on a 4.0 scale.
If accepted into the program, participants shall maintain a minimum cumulative GPA of 3.0 on a 4.0 scale in all coursework counted toward a bachelor of science degree in accounting.
(ii) Graduate stipulations: Applicants must have met the regular admission standards and have been accepted into the master of science accounting program at a Mississippi institution of higher learning.
If accepted into the program, participants shall maintain a minimum cumulative GPA of 3.0 on a 4.0 scale in all coursework counted toward a master of science degree in accounting.
(c) All program participants will be required to work a total of three hundred thirty-six (336) hours each summer at the Office of the State Auditor in Jackson, Mississippi.
(d) Agree to work as an auditor at the Office of the State Auditor upon graduation for a period of time equivalent to the period of time for which the applicant receives compensation, calculated to the nearest whole month, but in no event less than two (2) years.
(3) (a) Before being placed into the program, each applicant shall enter into a contract with the Office of the State Auditor, which shall be deemed a contract with the State of Mississippi, agreeing to the terms and conditions upon which the internship shall be granted to him. The contract shall include such terms and provisions necessary to carry out the full purpose and intent of this section. The form of such contract shall be prepared and approved by the Attorney General of this state, and shall be signed by the State Auditor of the Office of the State Auditor and the participant.
(b) Upon entry into the program, participants will become employees of the Office of the State Auditor during their time in the program and shall be eligible for benefits such as medical insurance paid by the agency for the participant; however, in accordance with Section 25-11-105II(b), those participants shall not become members of the Public Employees' Retirement System while participating in the program. Participants shall not accrue personal or major medical leave while they are in the program.
(c) The Office of the State Auditor shall have the authority to cancel any contract made between it and any program participant upon such cause being deemed sufficient by the State Auditor.
(d) The Office of the State Auditor is vested with full and complete authority and power to sue in its own name any participant for any damages due the state on any such uncompleted contract, which suit, subject to the provisions of Sections 1 and 2 of this act, shall be filed and handled by the Attorney General of the state. The Office of the State Auditor may contract with a collection agency or banking institution, subject to approval by the Attorney General, for collection of any damages due the state from any participant. The State of Mississippi, the Office of the State Auditor and its employees are immune from any suit brought in law or equity for actions taken by the collection agency or banking institution incidental to or arising from their performance under the contract. The Office of the State Auditor, collection agency and banking institution may negotiate for the payment of a sum that is less than full payment in order to satisfy any damages the participant owes the state, subject to approval by the director of the sponsoring facility within the Office of the State Auditor.
(4) (a) Any recipient who is accepted into the program by the Mississippi Office of the State Auditor and who fails to complete undergraduate- or graduate-level coursework toward a degree in accounting, or withdraws from school at any time before completing his or her education, shall be liable to repay the Office of the State Auditor for all monies received during the time the recipient was in the program, at the rate of pay received by the employee while in the program, including benefits paid by the agency for the participant, and monies received for tuition, books and related fees used to pursue their degree with interest accruing at ten percent (10%) per annum from the date the recipient failed or withdrew from school. The recipient also will not be liable for repayment for any money earned during the required summer hours. This money shall be considered earned by the recipient at the federal minimum wage rate.
(b) All paid internship compensation received by the recipient while in school shall be considered earned conditioned upon the fulfillment of the terms and obligations of the paid internship contract and this section. However, no recipient of the paid internship shall accrue personal or major medical leave while the recipient is pursuing junior or senior undergraduate-level year coursework toward a bachelor's degree in accounting or graduate-level coursework toward a master's degree in accounting. The recipient shall not be liable for liquidated damages.
(c) If the recipient does not work as an auditor at the Office of the State Auditor for the period required under subsection (2)(d) of this section, the recipient shall be liable for repayment on demand of the remaining portion of the compensation that the recipient was paid while in the program which has not been unconditionally earned, with interest accruing at ten percent (10%) per annum from the recipient's date of graduation or the date that the recipient last worked at the Office of the State Auditor, whichever is the later date. In addition, there shall be included in any contract for paid student internship a provision for liquidated damages equal to Five Thousand Dollars ($5,000.00) which may be reduced on a pro rata basis for each year served under such contract.
SECTION 26. Section 7-7-211, Mississippi Code of 1972, is amended as follows:
7-7-211. The department shall have the power and it shall be its duty:
(a) To identify and define for all public offices of the state and its subdivisions generally accepted accounting principles or other accounting principles as promulgated by nationally recognized professional organizations and to consult with the State Fiscal Officer in the prescription and implementation of accounting rules and regulations;
(b) To provide best practices, for all public offices of regional and local subdivisions of the state, systems of accounting, budgeting and reporting financial facts relating to said offices in conformity with legal requirements and with generally accepted accounting principles or other accounting principles as promulgated by nationally recognized professional organizations; to assist such subdivisions in need of assistance in the installation of such systems; to revise such systems when deemed necessary, and to report to the Legislature at periodic times the extent to which each office is maintaining such systems, along with such recommendations to the Legislature for improvement as seem desirable;
(c) To study and analyze existing managerial policies, methods, procedures, duties and services of the various state departments and institutions upon written request of the Governor, the Legislature or any committee or other body empowered by the Legislature to make such request to determine whether and where operations can be eliminated, combined, simplified and improved;
(d) To postaudit each year and, when deemed necessary, preaudit and investigate the financial affairs of the departments, institutions, boards, commissions, or other agencies of state government, as part of the publication of a comprehensive annual financial report for the State of Mississippi, or as deemed necessary by the State Auditor. In complying with the requirements of this paragraph, the department shall have the authority to conduct all necessary audit procedures on an interim and year-end basis;
(e) To postaudit and, when deemed necessary, preaudit and investigate separately the financial affairs of (i) the offices, boards and commissions of county governments and any departments and institutions thereof and therein; (ii) public school districts, departments of education and junior college districts; and (iii) any other local offices or agencies which share revenues derived from taxes or fees imposed by the State Legislature or receive grants from revenues collected by governmental divisions of the state; the cost of such audits, investigations or other services to be paid as follows: Such part shall be paid by the state from appropriations made by the Legislature for the operation of the State Department of Audit as may exceed the sum of Thirty-five Dollars ($35.00) per man-hour for the services of each staff person engaged in performing the audit or other service plus the actual cost of any independent specialist firm contracted by the State Auditor to assist in the performance of the audit, which sum shall be paid by the county, district, department, institution or other agency audited out of its general fund or any other available funds from which such payment is not prohibited by law. Costs paid for independent specialists or firms contracted by the State Auditor shall be paid by the audited entity through the State Auditor to the specialist or firm conducting the postaudit.
Each school district in the state shall have its financial records audited annually, at the end of each fiscal year, either by the State Auditor or by a certified public accountant approved by the State Auditor. Beginning with the audits of fiscal year 2010 activity, no certified public accountant shall be selected to perform the annual audit of a school district who has audited that district for three (3) or more consecutive years previously. Certified public accountants shall be selected in a manner determined by the State Auditor. The school district shall have the responsibility to pay for the audit, including the review by the State Auditor of audits performed by certified public accountants;
(f) To postaudit and, when deemed necessary, preaudit and investigate the financial affairs of the levee boards; agencies created by the Legislature or by executive order of the Governor; profit or nonprofit business entities administering programs financed by funds flowing through the State Treasury or through any of the agencies of the state, or its subdivisions; and all other public bodies supported by funds derived in part or wholly from public funds, except municipalities which annually submit an audit prepared by a qualified certified public accountant using methods and procedures prescribed by the department;
(g) To make written demand, when necessary, for the recovery of any amounts representing public funds improperly withheld, misappropriated and/or otherwise illegally expended by an officer, employee or administrative body of any state, county or other public office, and/or for the recovery of the value of any public property disposed of in an unlawful manner by a public officer, employee or administrative body, such demands to be made (i) upon the person or persons liable for such amounts and upon the surety on official bond thereof, and/or (ii) upon any individual, partnership, corporation or association to whom the illegal expenditure was made or with whom the unlawful disposition of public property was made, if such individual, partnership, corporation or association knew or had reason to know through the exercising of reasonable diligence that the expenditure was illegal or the disposition unlawful. Such demand shall be premised on competent evidence, which shall include at least one (1) of the following: (i) sworn statements, (ii) written documentation, (iii) physical evidence, or (iv) reports and findings of government or other law enforcement agencies. Other provisions notwithstanding, a demand letter issued pursuant to this paragraph shall remain confidential by the State Auditor until the individual against whom the demand letter is being filed has been served with a copy of such demand letter. If, however, such individual cannot be notified within fifteen (15) days using reasonable means and due diligence, such notification shall be made to the individual's bonding company, if he or she is bonded. Each such demand shall be paid into the proper treasury of the state, county or other public body through the office of the department in the amount demanded within thirty (30) days from the date thereof, together with interest thereon in the sum of one percent (1%) per month from the date such amount or amounts were improperly withheld, misappropriated and/or otherwise illegally expended. In the event, however, such person or persons or such surety shall refuse, neglect or otherwise fail to pay the amount demanded and the interest due thereon within the allotted thirty (30) days, the State Auditor shall have the authority and it shall be his duty to institute suit, and the Attorney General shall prosecute the same, subject to the provisions of Sections 1 and 2 of this act, in any court of the state to the end that there shall be recovered the total of such amounts from the person or persons and surety on official bond named therein; and the amounts so recovered shall be paid into the proper treasury of the state, county or other public body through the State Auditor. In any case where written demand is issued to a surety on the official bond of such person or persons and the surety refuses, neglects or otherwise fails within one hundred twenty (120) days to either pay the amount demanded and the interest due thereon or to give the State Auditor a written response with specific reasons for nonpayment, then the surety shall be subject to a civil penalty in an amount of twelve percent (12%) of the bond, not to exceed Ten Thousand Dollars ($10,000.00), to be deposited into the State General Fund;
(h) To investigate any alleged or suspected violation of the laws of the state by any officer or employee of the state, county or other public office in the purchase, sale or the use of any supplies, services, equipment or other property belonging thereto; and in such investigation to do any and all things necessary to procure evidence sufficient either to prove or disprove the existence of such alleged or suspected violations. The Department of Investigation of the State Department of Audit may investigate, for the purpose of prosecution, any suspected criminal violation of the provisions of this chapter. For the purpose of administration and enforcement of this chapter, the enforcement employees of the Department of Investigation of the State Department of Audit have the powers of a law enforcement officer of this state, and shall be empowered to make arrests and to serve and execute search warrants and other valid legal process anywhere within the State of Mississippi. All enforcement employees of the Department of Investigation of the State Department of Audit hired on or after July 1, 1993, shall be required to complete the Law Enforcement Officers Training Program and shall meet the standards of the program;
(i) To issue subpoenas, with the approval of, and returnable to, a judge of a chancery or circuit court, in termtime or in vacation, to examine the records, documents or other evidence of persons, firms, corporations or any other entities insofar as such records, documents or other evidence relate to dealings with any state, county or other public entity. The circuit or chancery judge must serve the county in which the records, documents or other evidence is located; or where all or part of the transaction or transactions occurred which are the subject of the subpoena;
(j) In any instances in which the State Auditor is or shall be authorized or required to examine or audit, whether preaudit or postaudit, any books, ledgers, accounts or other records of the affairs of any public hospital owned or owned and operated by one or more political subdivisions or parts thereof or any combination thereof, or any school district, including activity funds thereof, it shall be sufficient compliance therewith, in the discretion of the State Auditor, that such examination or audit be made from the report of any audit or other examination certified by a certified public accountant and prepared by or under the supervision of such certified public accountant. Such audits shall be made in accordance with generally accepted standards of auditing, with the use of an audit program prepared by the State Auditor, and final reports of such audits shall conform to the format prescribed by the State Auditor. All files, working papers, notes, correspondence and all other data compiled during the course of the audit shall be available, without cost, to the State Auditor for examination and abstracting during the normal business hours of any business day. The expense of such certified reports shall be borne by the respective hospital, or any available school district funds other than minimum program funds, subject to examination or audit. The State Auditor shall not be bound by such certified reports and may, in his or their discretion, conduct such examination or audit from the books, ledgers, accounts or other records involved as may be appropriate and authorized by law;
(k) The State Auditor shall have the authority to contract with qualified public accounting firms to perform selected audits required in paragraphs (d), (e), (f) and (j) of this section, if funds are made available for such contracts by the Legislature, or if funds are available from the governmental entity covered by paragraphs (d), (e), (f) and (j). Such audits shall be made in accordance with generally accepted standards of auditing. All files, working papers, notes, correspondence and all other data compiled during the course of the audit shall be available, without cost, to the State Auditor for examination and abstracting during the normal business hours of any business day;
(l) The State Auditor shall have the authority to establish training courses and programs for the personnel of the various state and local governmental entities under the jurisdiction of the Office of the State Auditor. The training courses and programs shall include, but not be limited to, topics on internal control of funds, property and equipment control and inventory, governmental accounting and financial reporting, and internal auditing. The State Auditor is authorized to charge a fee from the participants of these courses and programs, which fee shall be deposited into the Department of Audit Special Fund. State and local governmental entities are authorized to pay such fee and any travel expenses out of their general funds or any other available funds from which such payment is not prohibited by law;
(m) Upon written request by the Governor or any member of the State Legislature, the State Auditor may audit any state funds and/or state and federal funds received by any nonprofit corporation incorporated under the laws of this state;
(n) To conduct performance audits of personal or professional service contracts by state agencies on a random sampling basis, or upon request of the State Personal Service Contract Review Board under Section 25-9-120(3); and
(o) At the discretion of the State Auditor, the Auditor may conduct risk assessments, as well as performance and compliance audits based on Generally Accepted Government Auditing Standards (GAGAS) of any state-funded economic development program authorized under Title 57, Mississippi Code of 1972. After risk assessments or program audits, the State Auditor may conduct audits of those projects deemed high-risk, specifically as they identify any potential wrongdoing or noncompliance based on objectives of the economic development program. The Auditor is granted authority to gather, audit and review data and information from the Mississippi Development Authority or any of its agents, the Department of Revenue, and when necessary under this paragraph, the recipient business or businesses or any other private, public or nonprofit entity with information relevant to the audit project. The maximum amount the State Auditor may bill the oversight agency under this paragraph in any fiscal year is One Hundred Thousand Dollars ($100,000.00), based on reasonable and necessary expenses.
SECTION 27. Section 7-9-51, Mississippi Code of 1972, is amended as follows:
7-9-51. If the State Treasurer shall misapply, waste, or embezzle any money, stock, securities, or other property in the Treasury, it shall be the duty of the Attorney General to bring suit, subject to the provisions of Sections 1 and 2 of this act, on the bond of such Treasurer, in the circuit court of the county where the seat of government is situated, for the amount of money, stock, securities, or other property so misapplied, wasted, or embezzled. If a judgment be rendered for the plaintiff, the defendant shall pay double the damages assessed, not exceeding the penalty of the bond.
SECTION 28. Section 7-11-15, Mississippi Code of 1972, is brought forward as follows:
7-11-15. The Secretary of State shall secure a sufficient number of suitable and well bound books for each county, so that the lands now or hereafter owned by the state may be complied therein. The books, in addition to the necessary columns on which to list all necessary information with reference to the lands owned, shall contain a column on which to number all patents or contracts issued and any other information. The order of arrangement and all other matters pertaining thereto are hereby specifically left to the discretion of the Secretary of State.
In addition to the foregoing records, the Secretary of State shall provide and cause to be kept a separate register of the several different classes of lands, with appropriate references to other records or documents for information concerning the whole class, and of each parcel, if need be. He may cause correct township maps to be prepared from the field notes of original surveys, with all errors in the location of natural objects, if any there be, corrected, which maps may be supplied to the several counties at reasonable prices; and he may, in like manner, have maps and plats lithographed and sold.
The Secretary of State shall procure a sufficient number of forms of certificates which shall be used by the chancery clerks of each of the various counties in certifying to the Secretary of State's office lands sold to the state for unpaid taxes in his county, and the Secretary of State shall provide such certificates in such form that they may be bond by him and used as a part of the permanent records of his office. The said chancery clerks shall use only such forms of certificates in certifying said lands to the Secretary of State's office, and failure to do so shall subject such chancery clerk so refusing or failing to do so, and his bondsman, to a penalty of Five Hundred Dollars ($500.00), which penalty shall be collected by the Attorney General in a suit therefor filed in the name of the State of Mississippi. Such certificates, before being filed by the Secretary of State, shall be examined by the Attorney General. The Secretary of State, with the approval of the Attorney General, shall strike from such certificates all lands which, by reason of insufficient description or other cause, in the opinion of the Attorney General are not the property of the state; and the title of the state to such lands as may be thus stricken off shall be thereby relinquished.
SECTION 29. Section 9-3-17, Mississippi Code of 1972, is amended as follows:
9-3-17. The clerk shall carefully keep a minute of the proceedings of the court for each day, drawn up at large in a record book to be kept by him for that purpose; he shall seasonably record the judgments, decrees, orders, and decisions of the Court of Appeals and the Supreme Court; he shall safely keep all records, files, books and papers committed to his charge, and also all presses and furniture belonging to his office, and deliver such records, files, books, papers, presses and furniture to his successor in office; and in case of refusal or failure to deliver whatever belongs to his office to his successor, his bond may be put in suit by the Attorney General, subject to the provisions of Sections 1 and 2 of this act; he shall prepare for any person demanding the same a certified copy of any paper, record, decree, judgment, or entry on file in his office, proper to be certified, for the fees prescribed by law. The transcript filed in the Court of Appeals and Supreme Court, the process in each case, and the judgment or decree of the court thereon, shall be the final record in the cause, and certified as such by the clerk whenever an exemplification of the judgment or decree of the court may be required.
SECTION 30. Section 11-17-19, Mississippi Code of 1972, is brought forward as follows:
11-17-19. Any person, firm or corporation which claims title to or a leasehold or other interest in any real property, other than sixteenth section school lands or lands granted in lieu thereof, under or by virtue of a sale, conveyance or lease of such property by any county, municipality, supervisor's district, or other political subdivision of the State of Mississippi, acting either separately or jointly, may proceed by sworn complaint in the chancery court of the county in which such real property, or some part thereof, is located, to have the title to or leasehold or other interest in such real property quieted and confirmed. Such action may be brought whether or not such person, firm or corporation be in possession of such real property, or whether he or it be threatened to be disturbed in such possession or not. In such complaint, the person, firm or corporation claiming such title or leasehold or other interest shall be the party plaintiff and there shall be made defendants thereto the county, municipality or other political subdivision which sold, conveyed or leased said property, the Attorney General of the state and the district attorney of the county in which said suit is filed. In any such suit, it shall not be necessary that the plaintiff therein deraign his title to said property.
SECTION 31. Section 11-43-3, Mississippi Code of 1972, is brought forward as follows:
11-43-3. Nothing in this chapter shall authorize the discharge of any person convicted of an offense, or charged with an offense committed in any other part of the United States, and who, agreeably to the Constitution of the United States or the laws of the state, ought to be delivered up to the executive power of the state or territory where the offense is charged to have been committed; nor of any person suffering imprisonment under lawful judgment.
This chapter shall not apply to any collateral relief sought by any person following his conviction of a crime. Such relief shall be governed by the procedures prescribed in the Mississippi Uniform Post-Conviction Collateral Relief Act.
Provided, in any suit filed seeking the release of any person being held for extradition to any other part of the United States, its territories or foreign countries or any suit filed hereunder seeking the release of any person ordered extradited, a copy of the petition and writ shall be served upon the Attorney General not less than three (3) days before the date and time set for hearing thereon.
SECTION 32. Section 11-45-3, Mississippi Code of 1972, is brought forward as follows:
11-45-3. The summons in such suit shall be served on the Attorney General in the mode prescribed by law for the service of a summons in other cases; and he shall appear for the state. The suit shall be proceeded with as if it were between private persons; but a bill shall not be taken as confessed nor a judgment by default be rendered against the state. The answer of the state to any bill need not be under oath or under the great seal, but may be made by the Attorney General for the state.
SECTION 33. Section 13-7-41, Mississippi Code of 1972, is brought forward as follows:
13-7-41. The Attorney General shall make available suitable space for state grand juries to meet. The Mississippi Department of Public Safety and the Mississippi Bureau of Narcotics may provide such services as required by the Attorney General and the state grand juries.
SECTION 34. Section 17-13-11, Mississippi Code of 1972, is brought forward as follows:
17-13-11. (1) Every agreement made by a local governmental unit hereunder shall, prior to and as a condition precedent to its entry into force, be submitted to the Attorney General of this state who shall determine whether the agreement is in proper form and compatible with the laws of this state. No agreement may be considered that does not cite the specific authority under which each of the local governing units involved may exercise the powers necessary to fulfill the terms of the joint agreement. The Attorney General shall approve any such agreement submitted to him hereunder unless he shall find that it does not meet the conditions set forth herein and elsewhere in the laws of this state and shall detail in writing addressed to the governing bodies of the units concerned the specific respects in which the proposed agreement fails to meet the requirements of law.
Failure to disapprove an agreement submitted hereunder within sixty (60) days of its submission shall constitute approval thereof.
(2) In the event that an agreement made pursuant to this chapter shall deal in whole or in part with the provision of services or facilities with regard to which an officer, unit or agency of the state government has constitutional or statutory powers of control, the agreement shall, as a condition precedent to its being in force, be submitted to the state officer, unit or agency having such power of control and shall be approved or disapproved by him or it as to all matters within his or its jurisdiction in the same manner and subject to the same requirements governing action of the Attorney General pursuant to subsection (1) of this section.
(3) Prior to its being in force, an agreement made pursuant to this chapter shall be filed with the chancery clerk of each of the counties wherein a participating local governmental unit is located and with the Secretary of State. The chancery clerk and the Secretary of State shall preserve such agreements as public records and index and docket the same separate and apart from all other records in his office.
SECTION 35. Section 19-2-12, Mississippi Code of 1972, is amended as follows:
19-2-12. (1) If upon audit, examination or investigation, the State Auditor determines that an individual member of a county board of supervisors is not in substantial compliance with the provisions of law that require the county to operate on a countywide system of road administration, as described in Section 19-2-3, then the State Auditor shall give, by United States Certified Mail, return receipt requested, written notification to the supervisor of such noncompliance. If within thirty (30) days after receipt of the notice, such supervisor, in the opinion of the State Auditor, remains in noncompliance, the Auditor may institute civil proceedings in the chancery court of the county in which the supervisor serves. The court, upon hearing, shall decide the issue and, if it determines that such supervisor is not in substantial compliance, shall order the supervisor to immediately and thereafter comply. Violations of any order of the court shall be punishable as for contempt. In addition, the court, in its discretion, may impose a civil penalty in an amount not to exceed Five Thousand Dollars ($5,000.00) upon the supervisor, for which he shall be liable in his individual capacity, for any such noncompliance that the court determines as intentional or willful.
(2) The provisions of this section shall not be construed to prevent the State Auditor, the Attorney General or any other public official, as otherwise authorized by law, from initiating or commencing civil actions or criminal proceedings by or on behalf of the state or any county or political subdivision for the misappropriation or the unlawful use, taking or conversion of public funds or public property; however, the Attorney General shall be subject to the provisions of Sections 1 and 2 of this act.
SECTION 36. Section 23-15-813, Mississippi Code of 1972, is amended as follows:
23-15-813. (a) In addition to any other penalty permitted by law, the Mississippi Ethics Commission shall require any candidate or political committee, as identified in Section 23-15-805(a), and any other political committee registered with the Secretary of State, who fails to file a campaign finance disclosure report as required under Sections 23-15-801 through 23-15-813, or Sections 23-17-47 through 23-17-53, or who shall file a report that fails to substantially comply with the requirements of Sections 23-15-801 through 23-15-813, or Sections 23-17-47 through 23-17-53, to be assessed a civil penalty as follows:
(i) Within five (5) calendar days after any deadline for filing a report pursuant to Sections 23-15-801 through 23-15-813, or Sections 23-17-47 through 23-17-53, the Secretary of State shall compile a list of those candidates and political committees who have failed to file a report. The list shall be provided to the Mississippi Ethics Commission. The Secretary of State shall provide each candidate or political committee, who has failed to file a report, notice of the failure by first-class mail.
(ii) Beginning with the tenth calendar day after which any report is due, the Mississippi Ethics Commission shall assess the delinquent candidate and political committee a civil penalty of Fifty Dollars ($50.00) for each day or part of any day until a valid report is delivered to the Secretary of State, up to a maximum of ten (10) days. In the discretion of the Mississippi Ethics Commission, the assessing of the fine may be waived, in whole or in part, if the Commission determines that unforeseeable mitigating circumstances, such as the health of the candidate, interfered with the timely filing of a report. Failure of a candidate or political committee to receive notice of failure to file a report from the Secretary of State is not an unforeseeable mitigating circumstance, and failure to receive the notice shall not result in removal or reduction of any assessed civil penalty.
(iii) Filing of the required report and payment of the fine within ten (10) calendar days of notice by the Secretary of State that a required statement has not been filed constitutes compliance with Sections 23-15-801 through 23-15-813, or Sections 23-17-47 through 23-17-53.
(iv) Payment of the fine without filing the required report does not excuse or exempt any person from the filing requirements of Sections 23-15-801 through 23-15-813, and Sections 23-17-47 through 23-17-53.
(v) If any candidate or political committee is assessed a civil penalty, and the penalty is not subsequently waived by the Mississippi Ethics Commission, the candidate or political committee shall pay the fine to the Commission within ninety (90) days of the date of the assessment of the fine. If, after one hundred twenty (120) days of the assessment of the fine the payment for the entire amount of the assessed fine has not been received by the Commission, the Commission shall notify the Attorney General of the delinquency, and the Attorney General shall file, subject to the provisions of Sections 1 and 2 of this act, where necessary, a suit to compel payment of the civil penalty.
(b) (i) Upon the sworn application, made within sixty (60) calendar days of the date upon which the required report is due, of a candidate or political committee against whom a civil penalty has been assessed pursuant to subsection (a) of this section, the Secretary of State shall forward the application to the State Board of Election Commissioners. The State Board of Election Commissioners shall appoint one or more hearing officers who shall be former chancellors, circuit court judges, judges of the Court of Appeals or justices of the Supreme Court, to conduct hearings held pursuant to this article. The hearing officer shall fix a time and place for a hearing and shall cause a written notice specifying the civil penalties that have been assessed against the candidate or political committee and notice of the time and place of the hearing to be served upon the candidate or political committee at least twenty (20) calendar days before the hearing date. The notice may be served by mailing a copy of the notice by certified mail, postage prepaid, to the last-known business address of the candidate or political committee.
(ii) The hearing officer may issue subpoenas for the attendance of witnesses and the production of documents at the hearing. Process issued by the hearing officer shall extend to all parts of the state and shall be served by any person designated by the hearing officer for the service.
(iii) The candidate or political committee has the right to appear either personally, by counsel or both, to produce witnesses or evidence in his or her behalf, to cross-examine witnesses and to have subpoenas issued by the hearing officer.
(iv) At the hearing, the hearing officer shall administer oaths as may be necessary for the proper conduct of the hearing. All hearings shall be conducted by the hearing officer, who shall not be bound by strict rules of procedure or by the laws of evidence, but the determination shall be based upon sufficient evidence to sustain it. The scope of review at the hearing shall be limited to making a determination of whether failure to file a required report was due to an unforeseeable mitigating circumstance.
(v) In any proceeding before the hearing officer, if any witness fails or refuses to attend upon a subpoena issued by the commission, refuses to testify, or refuses to produce any documents called for by a subpoena, the attendance of the witness, the giving of his or her testimony or the production of the documents shall be enforced by a court of competent jurisdiction of this state in the manner provided for the enforcement of attendance and testimony of witnesses in civil cases in the courts of this state.
(vi) Within fifteen (15) calendar days after conclusion of the hearing, the hearing officer shall reduce his or her decision to writing and forward an attested true copy of the decision to the last-known business address of the candidate or political committee by way of United States first-class, certified mail, postage prepaid.
(c) (i) The right to appeal from the decision of the hearing officer in an administrative hearing concerning the assessment of civil penalties authorized pursuant to this section is granted. The appeal shall be to the Circuit Court of Hinds County and shall include a verbatim transcript of the testimony at the hearing. The appeal shall be taken within thirty (30) calendar days after notice of the decision of the commission following an administrative hearing. The appeal shall be perfected upon filing notice of the appeal and the prepayment of all costs, including the cost of preparing the record of the proceedings by the hearing officer, and filing a bond in the sum of Two Hundred Dollars ($200.00), conditioned that if the decision of the hearing officer is affirmed by the court, the candidate or political committee will pay the costs of the appeal and the action in court. If the decision is reversed by the court, the Mississippi Ethics Commission will pay the costs of the appeal and the action in court.
(ii) If there is an appeal, the appeal shall act as a supersedeas. The court shall dispose of the appeal and enter its decision promptly. The hearing on the appeal may be tried in vacation, in the court's discretion. The scope of review of the court shall be limited to a review of the record made before the hearing officer to determine if the action of the hearing officer is unlawful for the reason that it was 1. not supported by substantial evidence, 2. arbitrary or capricious, 3. beyond the power of the hearing officer to make, or 4. in violation of some statutory or constitutional right of the appellant. The decision of the court may be appealed to the Supreme Court in the manner provided by law.
(d) If, after forty-five (45) calendar days of the date of the administrative hearing procedure set forth in subsection (b), the candidate or political committee identified in subsection (a) of this section fails to pay the monetary civil penalty imposed by the hearing officer, the Secretary of State shall notify the Attorney General of the delinquency. The Attorney General shall investigate the offense in accordance with the provisions of this chapter, and where necessary, subject to the provisions of Sections 1 and 2 of this act, file suit to compel payment of the unpaid civil penalty.
(e) If, after twenty (20) calendar days of the date upon which a campaign finance disclosure report is due, a candidate or political committee identified in subsection (a) of this section shall not have filed a valid report with the Secretary of State, the Secretary of State shall notify the Attorney General of those candidates and political committees who have not filed a valid report, and the Attorney General shall prosecute the delinquent candidates and political committees.
SECTION 37. Section 25-4-21, Mississippi Code of 1972, is amended as follows:
25-4-21. (1) Upon receipt of a complaint that complies with Section 25-4-19, the commission shall authorize a confidential investigation of the complaint. Upon completion of the investigation, the commission shall proceed as follows:
(a) If the complaint concerns a public official in the legislative branch, the commission shall refer the complaint, confidentially, to the public official and to the appropriate committee of the House of Representatives or the Senate having jurisdiction over the ethical conduct of its members and employees.
(b) If the complaint concerns a public official in the judicial branch, the commission shall refer the complaint, confidentially, to the public official and to the Commission on Judicial Performance or the Chief Justice of the Supreme Court.
(c) If the complaint concerns a public official in the executive branch or persons not covered in paragraph (a) or (b) of this subsection, then the commission shall refer the complaint, confidentially, to the public official and to the head of the department or agency, if the person is in the executive branch, or, for other public officials, to the person about whom the complaint is filed.
(d) The persons, committees or commission receiving complaints referred in paragraph (a), (b) or (c) shall have thirty (30) days within which to respond to the complaint.
(e) After receiving the response to the complaint or, if no response is received after thirty (30) days from the notice of referral, the commission may, in its discretion, terminate the matter or proceed with an investigation as follows:
(i) The commission may terminate any and all proceedings at any stage of its procedure upon a determination that an appropriate disposition of the matter has occurred.
(ii) If the investigation indicates probable cause for belief that a violation of law has occurred, the commission may set a hearing of the matter to be held in accordance with the Mississippi Rules of Civil Procedure and the Mississippi Rules of Evidence. After the hearing, the commission may order penalties as prescribed in this chapter. The commission may enroll its order as a civil judgment with the circuit clerk in the county of residence of the judgment debtor. The commission may enforce the judgment on behalf of the State General Fund in the same manner as prescribed for other civil judgments, after complying with subsection (2) of this section.
(iii) The commission may refer the complaint with any evidence gathered during the investigation to the Attorney General and to the district attorney having jurisdiction, with a recommendation that it be considered for presentation to the grand jury. The Attorney General and the district attorney shall report back to the commission within ninety (90) days as to what action was taken following receipt of the complaint and recommendations of the commission, including the intent of the Attorney General to seek further civil remedies, subject to the provisions of Sections 1 and 2 of this act, and the intent of the district attorney to present such matter to the grand jury.
(2) Any person aggrieved by a decision of the commission made pursuant to its hearing procedures may appeal de novo to the Circuit Court for Hinds County and execution of the commission's decision shall be stayed upon the filing of a notice of appeal.
(3) Civil actions taken by the commission shall not bar prosecutions for violations of the criminal law.
SECTION 38. Section 25-4-113, Mississippi Code of 1972, is amended as follows:
25-4-113. The Attorney General of the State of Mississippi, the commission, or any governmental entity directly injured by a violation of this article may bring a separate civil action, subject to the provisions of Sections 1 and 2 of this act, against the public servant or other person or business violating the provisions of this article for recovery of damages suffered as a result of such violation. Further, any pecuniary benefit received by or given by a public servant in violation of this article shall be declared forfeited by a circuit court of competent jurisdiction for the benefit of the governmental entity injured. In the discretion of the court, any judgment for damages or forfeiture of pecuniary benefit may include costs of court and reasonable attorney's fees.
SECTION 39. Section 25-7-7, Mississippi Code of 1972, is brought forward as follows:
25-7-7. The clerk of the Supreme Court shall make out a separate, detailed account of fees adjudged against the state, in cases where the state fails in the prosecution or suit or in case of felony where the defendant appeals on pauper oath and the costs cannot be made out of his estate, or against any county, and due him in civil or criminal cases, keeping the fees in each case separate, and shall present it to the Attorney General, who shall examine the fee bill in each case and approve it if found to be correct. The fee bill thus approved shall be presented to the Supreme Court for allowance. If the court allow the same, it shall direct in criminal cases that it be paid out of the county treasury of the county where the prosecution was begun, on the order of the board of supervisors thereof; and in civil cases, that it be paid out of the state or county treasury, as the case may be. The board of supervisors shall allow said claim for fees against the county on presentation of a duly certified copy of the judgment of the Supreme Court ordering the same to be paid; and the auditor shall issue a warrant, on the order of the Supreme Court, for such costs against the state in civil cases to be paid by the State Treasurer out of the proper appropriation.
SECTION 40. Section 25-9-127, Mississippi Code of 1972, is brought forward as follows:
25-9-127. (1) No employee of any department, agency or institution who is included under this chapter or hereafter included under its authority, and who is subject to the rules and regulations prescribed by the state personnel system, may be dismissed or otherwise adversely affected as to compensation or employment status except for inefficiency or other good cause, and after written notice and hearing within the department, agency or institution as shall be specified in the rules and regulations of the State Personnel Board complying with due process of law; and any employee who has by written notice of dismissal or action adversely affecting his compensation or employment status shall, on hearing and on any appeal of any decision made in such action, be required to furnish evidence that the reasons stated in the notice of dismissal or action adversely affecting his compensation or employment status are not true or are not sufficient grounds for the action taken; provided, however, that this provision shall not apply (a) to persons separated from any department, agency or institution due to curtailment of funds or reduction in staff when such separation is in accordance with rules and regulations of the state personnel system; (b) during the probationary period of state service of twelve (12) months; and (c) to an executive officer of any state agency who serves at the will and pleasure of the Governor, board, commission or other appointing authority.
(2) The operation of a state-owned motor vehicle without a valid Mississippi driver's license by an employee of any department, agency or institution that is included under this chapter and that is subject to the rules and regulations of the state personnel system shall constitute good cause for dismissal of such person from employment.
(3) Beginning July 1, 1999, every male between the ages of eighteen (18) and twenty-six (26) who is required to register under the federal Military Selective Service Act, 50 USCS App. 453, and who is an employee of the state shall not be promoted to any higher position of employment with the state until he submits to the person, commission, board or agency by which he is employed satisfactory documentation of his compliance with the draft registration requirements of the Military Selective Service Act. The documentation shall include a signed affirmation under penalty of perjury that the male employee has complied with the requirements of the Military Selective Service Act.
(4) For a period of two (2) years beginning July 1, 2014, the provisions of subsection (1) shall not apply to the personnel actions of the State Department of Education that are subject to the rules and regulations of the State Personnel Board, and all employees of the department shall be classified as nonstate service during that period. However, any employee hired after July 1, 2014, by the department shall meet the criteria of the State Personnel Board as it presently exists for employment. The State Superintendent of Public Education and the State Board of Education shall consult with the Office of the Attorney General before taking personnel actions authorized by this section to review those actions for compliance with applicable state and federal law.
It is not the intention or effect of this section to include any school attendance officer in any exemption from coverage under the State Personnel Board policy or regulations, including, but not limited to, termination and conditions of employment.
(5) (a) For a period of two (2) years beginning July 1, 2015, the provisions of subsection (1) shall not apply to the personnel actions of the Department of Corrections, and all employees of the department shall be classified as nonstate service during that period. However, any employee hired after July 1, 2015, by the department shall meet the criteria of the State Personnel Board as it presently exists for employment.
(b) Additionally, for a period of one (1) year beginning July 1, 2016, the personnel actions of the Commissioner of the Department of Corrections shall be exempt from State Personnel Board rules, regulations and procedures in order to give the commissioner flexibility in making an orderly, effective and timely reorganization and realignment of the department.
(c) The Commissioner of Corrections shall consult with the Office of the Attorney General before personnel actions authorized by this section to review those actions for compliance with applicable state and federal law.
(6) Through July 1, 2019, the provisions of subsection (1) of this section shall not apply to the personnel actions of the Department of Human Services that are subject to the rules and regulations of the State Personnel Board, and all employees of the department shall be classified as nonstate service during that period. Any employee hired on or after July 1, 2019, by the department shall meet the criteria of the State Personnel Board as it presently exists for employment. The Executive Director of Human Services shall consult with the Office of the Attorney General before taking personnel actions authorized by this section to review those actions for compliance with applicable state and federal law.
(7) Through July 1, 2019, the provisions of subsection (1) of this section shall not apply to the personnel actions of the Department of Child Protection Services that are subject to the rules and regulations of the State Personnel Board, and all employees of the department shall be classified as nonstate service during that period. Any employee hired on or after July 1, 2019, by the division shall meet the criteria of the State Personnel Board as it presently exists for employment. The Commissioner of Child Protection Services shall consult with the Office of the Attorney General before taking personnel actions authorized by this section to review those actions for compliance with applicable state and federal law.
(8) Any state agency whose personnel actions are exempted in this section from the rules, regulations and procedures of the State Personnel Board shall file with the Lieutenant Governor, the Speaker of the House of Representatives, and the members of the Senate and House Accountability, Efficiency, Transparency Committees an annual report no later than July 1, 2016, and each year thereafter while under the exemption. Such annual report shall contain the following information:
(a) The number of current employees who received an increase in salary during the past fiscal year and the amount of the increase;
(b) The number of employees who were dismissed from the agency or otherwise adversely affected as to compensation or employment status during the past fiscal year, including a description of such adverse effects; and
(c) The number of new employees hired during the past fiscal year and the starting salaries of each new employee.
SECTION 41. Section 25-31-11, Mississippi Code of 1972, is brought forward as follows:
25-31-11. (1) It shall be the duty of the district attorney to represent the state in all matters coming before the grand juries of the counties within his district and to appear in the circuit courts and prosecute for the state in his district all criminal prosecutions and all civil cases in which the state or any county within his district may be interested; but if two (2) or more counties are adversely interested, the district attorney shall not represent either. Any district attorney may also institute and prosecute to final judgment or decree any case in the name of the state against any person or corporation for any violation of the Constitution or the laws of this state, in order to enforce any penalties, fines or forfeitures imposed by law in any court of his district having jurisdiction, with like effect as if the suit was instituted by the Attorney General.
(2) The district attorney may transfer any case handled by him to a county prosecuting attorney when charges in such case no longer constitute a felony.
(3) The validity of any judgment or sentence shall not be affected by the division of jurisdiction under this section, and no judgment or sentence may be reversed or modified upon the basis that the case was not processed according to this section.
(4) A county prosecuting attorney or municipal prosecuting attorney may be designated by the district attorney to appear on behalf of the district attorney pursuant to an agreement relating to appearances in certain courts or proceedings in the county of the county prosecuting attorney or in the municipality of the municipal prosecuting attorney. Such agreement shall be filed with the circuit court clerk of any county where such agreement shall be operative. Such agreement shall be binding upon the district attorney and county prosecuting attorney or municipal prosecuting attorney until dissolved by either of them in writing upon five (5) days' notice.
(5) Where any statute of this state confers a jurisdiction, responsibility, duty, privilege or power upon a county attorney or county prosecuting attorney, either solely, jointly or alternatively with a district attorney, such county prosecuting attorney shall be responsible for the prosecution, handling, appearance, disposition or other duty conferred by such statute. Any such provision shall not be construed to bestow such responsibility, jurisdiction or power upon the district attorney where there is no elected county prosecuting attorney, and any such matter shall be handled pursuant to Section 19-3-49, Mississippi Code of 1972.
(6) The district attorney or his designated assistant, or the county prosecuting attorney or his designated assistant, shall assist the Attorney General in appeals from his district to the Mississippi Supreme Court and in other post judgment proceedings, and shall appear for oral argument before the Supreme Court when directed by the Supreme Court.
(7) The several district attorneys shall submit reports of revenues and expenditures and shall submit budget requests as required for State General Fund agencies. For purposes of budget control, the several offices of district attorney shall be considered General Fund agencies and the budget and accounts of the several offices, including salaries, travel expenses, office expenses and any other expenditures or revenues, shall be consolidated for all districts as far as such consolidation is practical.
All revenue or funds allocated or expended by a district attorney, whether such funds are appropriated from state funds, or whether such funds are received from county funds, grants or otherwise, shall be reported to the Legislative Budget Office.
(8) A district attorney shall be authorized to assign the duties of employees regardless of the source of funding for such employees.
SECTION 42. Section 25-31-19, Mississippi Code of 1972, is amended as follows:
25-31-19.
The several district attorneys, with the Attorney General, are hereby
authorized to institute or defend any suits, subject to the provisions of
Sections 1 and 2 of this act, arising out of any act or order of the * * * Department of Revenue or
the Public Service Commission affecting the laws and revenues of the state, and
are also clothed with such other authority as is conferred upon them at common
law.
SECTION 43. Section 25-31-25, Mississippi Code of 1972, is amended as follows:
25-31-25. When it may be necessary and proper for the enforcement or collection of any judgment or debt in favor of the state, or any officer thereof in his official capacity, or of any county, the district attorney with the approval of the Attorney General shall institute and prosecute, subject to the provisions of Sections 1 and 2 of this act, in behalf of the creditor, a suit or suits to set aside and annul any conveyance or other device fraudulently made by the debtor, or any one for him, to hinder, delay, or defraud the creditor.
SECTION 44. Section 25-31-27, Mississippi Code of 1972, is brought forward as follows:
25-31-27. No district attorney of this state, without the consent in writing of the Attorney General, shall institute or prosecute any civil suit for a violation of the antitrust statutes of this state; and no court shall take cognizance of any such suit without such written consent of the Attorney General.
SECTION 45. Section 27-3-73, Mississippi Code of 1972, is amended as follows:
27-3-73. (1) Except in accordance with proper judicial order or as otherwise provided in this section or as authorized in Section 27-4-3, it shall be unlawful for the Commissioner of Revenue, or any deputy, agent, clerk or other officer or employee of the Department of Revenue, to divulge or make known in any manner the amount of income or any particulars set forth or disclosed in any report or return required on any taxes collected by reports received by the Department of Revenue. This provision relates to all taxes collected by the Department of Revenue and not referred to in Sections 27-7-83, 27-13-57 and 27-65-81, requiring confidentiality of income tax, franchise tax and sales tax returns. All system edits, thresholds, and any other automated system calculations used by the Department of Revenue in the processing of returns or statistics or used to determine the correct tax due for all taxes administered by the department shall be considered confidential information and may not be divulged or made known. Nothing in this section shall be construed to prohibit the publication of statistics, so classified as to prevent the identification of particular reports or returns and the items thereof, or the inspection by the Attorney General, or any other attorney representing the state, of the report or return of any taxpayer who shall bring action to set aside the tax thereon, except the Attorney General's authority to bring action shall be subject to provisions of Sections 1 and 2 of this act, or against whom an action or proceeding has been instituted to recover any tax or penalty imposed. Additionally, nothing in this section shall prohibit the Commissioner of Revenue from making available information necessary to recover taxes owing the state pursuant to the authority granted in Section 27-75-16.
The term "proper judicial order" as used in this section shall not include subpoenas or subpoenas duces tecum but shall include only those orders entered by a court of record in this state after furnishing notice and a hearing to the taxpayer and the Department of Revenue. The court shall not authorize the furnishing of such information unless it is satisfied that the information is needed to pursue pending litigation wherein the return itself is in issue, or the judge is satisfied that the need for furnishing the information outweighs the rights of the taxpayer to have such information secreted.
However, information relating to possible tax liability to other states or the federal government may be furnished to the revenue departments of those states or the federal government when the states or federal government grant a like comity to Mississippi.
(2) The State Auditor and the employees of his office shall have the right to examine only such tax returns as are necessary for auditing the Department of Revenue, and the same prohibitions against disclosure which apply to the Department of Revenue shall apply to the State Auditor and his office.
(3) Officers and employees of the Mississippi Development Authority who execute a confidentiality agreement with the Department of Revenue shall be authorized to discuss and examine information to which this section applies at the offices of the Mississippi Department of Revenue. This disclosure is limited to information necessary to properly administer the programs under the jurisdiction of the Mississippi Development Authority. The Department of Revenue is authorized to disclose to officers and employees of the Mississippi Development Authority who execute a confidentiality agreement the information necessary under the circumstances. The same prohibitions against disclosure which apply to the Department of Revenue shall apply to the officers or employees of the Mississippi Development Authority.
(4) Information required by the University Research Center to prepare the analyses required by Sections 57-13-101 through 57-13-109 shall be furnished to the University Research Center upon request. It shall be unlawful for any officer or employee of the University Research Center to divulge or make known in any manner the amount of income or any particulars set forth or disclosed in any information received by the center from the Department of Revenue other than as may be required by Sections 57-13-101 through 57-13-109 in an analysis prepared pursuant to Sections 57-13-101 through 57-13-109.
(5) Information required by the Mississippi Development Authority to prepare the reports required by Section 57-1-12.2 shall be furnished to the Mississippi Development Authority upon request. It shall be unlawful for any officer or employee of the Mississippi Development Authority to divulge or make known in any manner the amount of income or any particulars set forth or disclosed in any information received by the Mississippi Development Authority from the Department of Revenue other than as may be required by Section 57-1-12.2 in a report prepared pursuant to Section 57-1-12.2.
(6) Information necessary to comply with Chapter 13, Title 85, may be furnished to financial institutions. It shall be unlawful for any officer or employee of the financial institution to divulge or make known in any manner the amount of income or any particulars set forth or disclosed in any information received by the financial institution from the Department of Revenue other than as may be authorized by Chapter 13, Title 85.
(7) Any person who violates the provisions of this section shall be guilty of a misdemeanor and, on conviction thereof, shall be fined not more than One Thousand Dollars ($1,000.00) or imprisoned not more than six (6) months in the county jail, or both.
(8) The Commissioner of Revenue and the Department of Revenue are authorized to disclose to the Child Support Unit and to the Fraud Investigation Unit of the Department of Human Services without the need for a subpoena or proper judicial order the name, address, social security number, amount of income, amount of sales tax, source of income, assets and other relevant information, records and tax forms for individuals who are delinquent in the payment of any child support as defined in Section 93-11-101 or who are under investigation for fraud or abuse of any state or federal program or statute as provided in Section 43-1-23.
SECTION 46. Section 27-7-83, Mississippi Code of 1972, is amended as follows:
27-7-83. (1) Returns and return information filed or furnished under the provisions of this chapter shall be confidential, and except in accordance with proper judicial order, as otherwise authorized by this section or as authorized in Section 27-4-3, it shall be unlawful for the Commissioner of Revenue or any deputy, agent, clerk or other officer or employee of the Department of Revenue or the Mississippi Department of Information Technology Services, or any former employee thereof, to divulge or make known in any manner the amount of income or any particulars set forth or disclosed in any report or return required. The provisions of this section shall apply fully to any federal return, a copy of any portion of a federal return, or any information reflected on a federal return which is attached to or made a part of the state tax return. Likewise, the provisions of this section shall apply to any federal return or portion thereof, or to any federal return information data which is acquired from the Internal Revenue Service for state tax administration purposes pursuant to the Federal-State Exchange Program cited at Section 6103, Federal Internal Revenue Code. The term "proper judicial order" as used in this section shall not include subpoenas or subpoenas duces tecum, but shall include only those orders entered by a court of record in this state after furnishing notice and a hearing to the taxpayer and the Department of Revenue. The court shall not authorize the furnishing of such information unless it is satisfied that the information is needed to pursue pending litigation wherein the return itself is in issue, or the judge is satisfied that the need for furnishing the information outweighs the rights of the taxpayer to have such information secreted.
(2) Returns and return information with respect to taxes imposed by this chapter shall be open to inspection by or disclosure to the Commissioner of the Internal Revenue Service of the United States, or the proper officer of any state imposing an income tax similar to that imposed by this chapter, or the authorized representatives of such agencies. Such inspection shall be permitted, or such disclosure made, only upon written request by the head of such agencies, or the district director in the case of the Internal Revenue Service, and only to the representatives of such agencies designated in a written statement to the Commissioner of Revenue as the individuals who are to inspect or to receive the return or return information on behalf of such agency. The Commissioner of Revenue is authorized to enter into agreements with the Internal Revenue Service and with other states for the exchange of returns and return information data, or the disclosure of returns or return information data to such agencies, only to the extent that the statutes of the United States or of such other state, as the case may be, grant substantially similar privileges to the proper officer of this state charged with the administration of the tax laws of this state.
(3) (a) The return of a person shall, upon written request, be open to inspection by or disclosure to:
(i) In the case of the return of an individual, that individual;
(ii) In the case of an income tax return filed jointly, either of the individuals with respect to whom the return is filed;
(iii) In the case of the return of a partnership, any person who was a member of such partnership during any part of the period covered by the return;
(iv) In the case of the return of a corporation or a subsidiary thereof, any person designated by resolution of its board of directors or other similar governing body, or any officer or employee of such corporation upon written request signed by any principal officer and attested to by the secretary or other officer;
(v) In the case of the return of an estate, the administrator, executor or trustee of such estate, and any heir at law, next of kin or beneficiary under the will, of the decedent, but only to the extent that such latter persons have a material interest which will be affected by information contained therein;
(vi) In the case of the return of a trust, the trustee or trustees, jointly or separately, and any beneficiary of such trust, but only to the extent that such beneficiary has a material interest which will be affected by information contained therein;
(vii) In the case of the return of an individual or a return filed jointly, any claimant agency seeking to collect a debt through the setoff procedure established in Sections 27-7-701 through 27-7-713 and Sections 27-7-501 through 27-7-519, from an individual with respect to whom the return is filed.
(b) If an individual described in paragraph (a) is legally incompetent, the applicable return shall, upon written request, be open to inspection by or disclosure to the committee, trustee or guardian of his estate.
(c) If substantially all of the property of the person with respect to whom the return is filed is in the hands of a trustee in bankruptcy or receiver, such return or returns for prior years of such person shall, upon written request, be open to inspection by or disclosure to such trustee or receiver, but only if the Commissioner of Revenue finds that such receiver or trustee, in his fiduciary capacity, has a material interest which will be affected by information contained therein.
(d) Any return to which this section applies shall, upon written request, also be open to inspection by or disclosure to the attorney-in-fact duly authorized in writing by any of the persons described in paragraph (a) of this subsection to inspect the return or receive the information on his behalf, subject to the conditions provided in paragraph (a).
(e) Return information with respect to any taxpayer may be open to inspection by or disclosure to any person authorized by this subsection to inspect any return of such taxpayer if the Commissioner of Revenue determines that such disclosure would not seriously impair state tax administration.
(4) The State Auditor and the employees of his office shall have the right to examine only such tax returns as are necessary for auditing the Department of Revenue, and the same prohibitions against disclosure which apply to the Department of Revenue shall apply to the State Auditor and his employees or former employees.
(5) Officers and employees of the Mississippi Development Authority who execute a confidentiality agreement with the Department of Revenue shall be authorized to discuss and examine information to which this section applies at the offices of the Mississippi Department of Revenue. This disclosure is limited to information necessary to properly administer the programs under the jurisdiction of the Mississippi Development Authority. The Department of Revenue is authorized to disclose to officers and employees of the Mississippi Development Authority who execute a confidentiality agreement the information necessary under the circumstances. The same prohibitions against disclosure which apply to the Department of Revenue shall apply to the officers or employees of the Mississippi Development Authority.
(6) Information required by the University Research Center to prepare the analyses required by Sections 57-13-101 through 57-13-109 shall be furnished to the University Research Center upon request. It shall be unlawful for any officer or employee of the University Research Center to divulge or make known in any manner the amount of income or any particulars set forth or disclosed in any information received by the center from the Department of Revenue other than as may be required by Sections 57-13-101 through 57-13-109 in an analysis prepared pursuant to Sections 57-13-101 through 57-13-109.
(7) Information required by the Mississippi Development Authority to prepare the reports required by Section 57-1-12.2 shall be furnished to the Mississippi Development Authority upon request. It shall be unlawful for any officer or employee of the Mississippi Development Authority to divulge or make known in any manner the amount of income or any particulars set forth or disclosed in any information received by the Mississippi Development Authority from the Department of Revenue other than as may be required by Section 57-1-12.2 in a report prepared pursuant to Section 57-1-12.2.
(8) Information necessary to comply with Chapter 13, Title 85, may be furnished to financial institutions. It shall be unlawful for any officer or employee of the financial institution to divulge or make known in any manner the amount of income or any particulars set forth or disclosed in any information received by the financial institution from the Department of Revenue other than as may be authorized by Chapter 13, Title 85.
(9) Nothing in this section shall be construed to prohibit the publication of statistics, so classified as to prevent the identification of particular reports or returns and the items thereof, or the inspection by the Attorney General, or any other attorney representing the state, of the report or return of any taxpayer who shall bring action, except the Attorney General's authority to bring action shall be subject to the provisions of Sections 1 and 2 of this act, to set aside the tax thereon, or against whom any action or proceeding has been instituted to recover any tax or penalty imposed.
(10) Nothing in this section shall prohibit the commissioner from making available information necessary to recover taxes owing the state pursuant to the authority granted in Section 27-75-16.
(11) Reports and returns required under the provisions of this chapter shall be preserved in accordance with approved records control schedules. No records, however, may be destroyed without the approval of the Director of the Department of Archives and History.
(12) The Department of Revenue is authorized to disclose to the Child Support Unit and to the Fraud Investigation Unit of the Department of Human Services without the need for a subpoena or proper judicial order the name, address, social security number, amount of income, source of income, assets and other relevant information, records and tax forms for individuals who are delinquent in the payment of any child support as defined in Section 93-11-101 or who are under investigation for fraud or abuse of any state or federal program or statute as provided in Section 43-1-23.
(13) Nothing in this section shall prohibit the Department of Revenue from exchanging information with the federal government that is necessary to offset income tax refund payment on debts owed to this state or the United States.
(14) Nothing in this section shall prohibit the department from making available information that is necessary to be disclosed for the administration and enforcement of Section 27-7-87.
SECTION 47. Section 27-9-39, Mississippi Code of 1972, is amended as follows:
27-9-39. Action may be brought at any time by the commissioner or the Attorney General, except the Attorney General's authority to bring action shall be subject to provisions of Sections 1 and 2 of this act, of the state in the name of the commissioner to recover the amount of any tax, penalties and interest due under this chapter. Such action shall be brought in the county and district where the taxpayer resides.
All
administrative provisions of the Mississippi Sales Tax Law shall apply with
like force and effect to all persons liable for taxes under the provisions of
this chapter, and the commissioner and the * * * Department of Revenue
shall exercise all power and authority and perform all the duties with respect
to taxpayers under this chapter as are provided in said Mississippi Sales Tax
Law. In case of conflict between the provisions of this chapter and any
provision in the Mississippi Sales Tax Law, then the provisions of this chapter
shall control.
SECTION 48. Section 27-9-55, Mississippi Code of 1972, is brought forward as follows:
27-9-55. (1) Except in accordance with proper judicial order, or as otherwise provided by law, it shall be unlawful for the members of the commission, any deputy, agent, clerk, or other officer, or employee, to divulge or make known in any manner the value of any estate or any particulars set forth or disclosed in any report or return required. Nothing herein shall be construed to prohibit the publication of statistics, so classified so as to prevent the identification of particular reports or returns and the items thereof, or the inspection by the Attorney General or other legal representatives of the state, of the report or return of any taxpayer who shall bring action to set aside or review the tax based thereon or against whom an action or proceeding has been instituted to recover any tax or penalty imposed by this chapter. Reports and returns shall be preserved in accordance with approved records control schedules. No records, however, may be destroyed without the approval of the Director of the Department of Archives and History.
(2) Notwithstanding the provisions of this section, the commissioner may permit the Commissioner of Internal Revenue of the United States or the proper officer of any state imposing an estate tax similar to that imposed by this chapter, or the authorized representative of either such officer, to inspect the estate tax returns of any individual, or may furnish to such officer or his authorized representatives an abstract of the return for estate tax of any executor or supply him with information concerning any item contained in any return, or disclosed by the report of any investigation of the return of any executor, but such permission shall be granted, or such information furnished to such officer or his representative only if the statutes of the United States or of such other state, as the case may be, grant substantially similar privileges to the proper officer of this state charged with the administration of this chapter.
SECTION 49. Section 27-13-27, Mississippi Code of 1972, is brought forward as follows:
27-13-27. (1) If any corporation or organization taxable under this chapter after receiving due process under the provisions of this chapter, shall fail or refuse to pay the tax demanded and determined by the commissioner, together with all penalties and interest shown to be due, or if such corporation or organization shall fail to file a protest against such assessment, or appeal therefrom, then the commissioner, in addition to the other authority conferred upon him in this chapter, may request the administrative dissolution of such corporation or organization pursuant to Sections 79-4-14.20 through 79-4-14.23, or the revocation of the certificate of authority of such corporation or organization pursuant to Section 79-4-15.30 through 79-4-15.33, as the case may be. Whereupon, the commissioner shall notify the Secretary of State of such request for administrative dissolution or revocation of certificate of authority.
(2) Any officer, agent, or employee of any organization subject to the provisions of this chapter, who shall exercise, attempt to exercise or cause to be exercised, any of the rights, privileges, powers or franchises of any such organization after such administrative dissolution or revocation of certificate of authority shall be deemed to have acted in violation of the provisions of this chapter, and as a penalty therefor, shall be fined a sum not less than One Hundred Dollars ($100.00) and not more than One Thousand Dollars ($1,000.00) to be collected by the Attorney General of the State of Mississippi upon recommendation of the commissioner, by appropriate action in any court of competent jurisdiction and each such act shall be deemed a separate violation of the provisions of this chapter, and the amount of the penalty shall be stated in the action brought by the Attorney General of the State of Mississippi. The penalty herein provided shall be against the person violating the provisions of this chapter and be proceeded against in personam and shall be in addition to the tax, interest, penalty and increase assessed against the organization, nor shall its collection or settlement in any way relieve the organization as such from its liabilities. Provided, however, that the commissioner, for good cause shown in writing, and satisfactory explanation of the delinquency or violation, may recommend the compromise or cessation of the action against the offending officer, agent or employee and the Attorney General of the State of Mississippi shall be governed by the recommendation of the commissioner.
(3) If any organization thus administratively dissolved or for which a certificate of authority has been revoked shall appear, either by its principal officer or officers, or its attorney, within twelve (12) months from the date of such administrative dissolution or revocation of certificate of authority, and make satisfactory explanation of the cause of the default; and pay all taxes due, together with all interest, penalties and increases finally determined by the commissioner to be due, then it shall be the duty of the commissioner to immediately notify the Secretary of State.
(4) Upon the setting aside of such administrative dissolution or revocation of certificate of authority, said organization shall be restored to all rights of which it was deprived by such administrative dissolution or revocation of certificate of authority, and authorized to resume all activities as though said administrative dissolution or revocation of certificate of authority had not been imposed.
(5) If, however, the administrative dissolution or revocation of certificate of authority has not been set aside within a period of twelve (12) months from the date of the original imposition thereof, all rights to have such administrative dissolution or revocation of certificate of authority set aside shall cease; and after the expiration of said twelve-month period, said organization, insofar as being a going concern, with rights to exercise powers originally granted are concerned, shall be considered as nonexistent; and the disposition of assets, and winding up of the affairs of the organization may be accomplished in such manner as may be provided by law.
SECTION 50. Section 27-13-57, Mississippi Code of 1972, is brought forward as follows:
27-13-57. (1) Except in accordance with the proper judicial order, or as otherwise provided in this section or as authorized in Section 27-4-3, it shall be unlawful for the Commissioner of Revenue or any deputy, agent, clerk or other officer or employee of the Department of Revenue to divulge or make known in any manner any particulars set forth or disclosed in any report or return required under this chapter. When a combined report or return is filed as authorized by Section 27-13-17(5), each report or return which composes the combined return shall be considered separate for the purpose of any examinations authorized in this section and only particulars relating to the specific return or report set forth in the judicial order or as otherwise provided shall be considered lawfully divulged. The term "proper judicial order" as used in this section shall not include subpoenas or subpoenas duces tecum, but shall include only those orders entered by a court of record in this state after furnishing notice and a hearing to the taxpayer and the Department of Revenue. The court shall not authorize the furnishing of such information unless it is satisfied that the information is needed to pursue pending litigation wherein the return itself is in issue, or the judge is satisfied that the need for furnishing the information outweighs the rights of the taxpayer to have such information secreted. Nothing in this section shall be construed to prohibit the publication of statistics, so classified as to prevent the identification of particular reports or returns and the items thereof, or the inspection by the Attorney General or any other attorney representing the state of the report or return of any taxpayer who shall bring action to set aside or review the tax based thereon, or against whom an action or proceeding has been instituted to recover any tax or penalty imposed by this chapter. Reports and returns shall be preserved in accordance with approved records control schedules. No records, however, may be destroyed without the approval of the Director of the Department of Archives and History.
However, information relating to possible tax liability of other states or the federal government may be furnished to the revenue department of those states or the federal government when those states or the federal government grant a like comity to Mississippi.
(2) The State Auditor and the employees of his office shall have the right to examine only such tax returns as are necessary for auditing the Department of Revenue, and the same prohibitions against disclosure which apply to the Department of Revenue shall apply to the State Auditor and his office.
(3) Officers and employees of the Mississippi Development Authority who execute a confidentiality agreement with the Department of Revenue shall be authorized to discuss and examine information to which this section applies at the offices of the Mississippi Department of Revenue. This disclosure is limited to information necessary to properly administer the programs under the jurisdiction of the Mississippi Development Authority. The Department of Revenue is authorized to disclose to officers and employees of the Mississippi Development Authority who execute a confidentiality agreement the information necessary under the circumstances. The same prohibitions against disclosure which apply to the Department of Revenue shall apply to the officers or employees of the Mississippi Development Authority.
(4) Information required by the University Research Center to prepare the analyses required by Sections 57-13-101 through 57-13-109 shall be furnished to the University Research Center upon request. It shall be unlawful for any officer or employee of the University Research Center to divulge or make known in any manner any particulars set forth or disclosed in any information received by the center from the Department of Revenue other than as may be required by Sections 57-13-101 through 57-13-109 in an analysis prepared pursuant to Sections 57-13-101 through 57-13-109.
(5) Information required by the Mississippi Development Authority to prepare the reports required by Section 57-1-12.2 shall be furnished to the Mississippi Development Authority upon request. It shall be unlawful for any officer or employee of the Mississippi Development Authority to divulge or make known in any manner the amount of income or any particulars set forth or disclosed in any information received by the Mississippi Development Authority from the Department of Revenue other than as may be required by Section 57-1-12.2 in a report prepared pursuant to Section 57-1-12.2.
(6) Information necessary to comply with Chapter 13, Title 85 may be furnished to financial institutions. It shall be unlawful for any officer or employee of the financial institution to divulge or make known in any manner the amount of income or any particulars set forth or disclosed in any information received by the financial institution from the Department of Revenue other than as may be authorized by Chapter 13, Title 85.
(7) Nothing in this section shall prohibit the Commissioner of Revenue from making available information necessary to recover taxes owing the state pursuant to the authority granted in Section 27-75-16, Mississippi Code of 1972.
(8) Any person violating the provisions of this section shall be guilty of a misdemeanor and, on conviction, shall be punished by a fine of not exceeding Five Hundred Dollars ($500.00), or by imprisonment not exceeding one (1) year, or both, at the discretion of the court, and if the offender be an officer or employee of the state he shall be dismissed from office and be incapable of holding any public office in this state for a period of five (5) years thereafter.
SECTION 51. Section 27-17-499, Mississippi Code of 1972, is amended as follows:
27-17-499. It shall be the duty of the officer required to collect privilege taxes to require all persons liable for a privilege tax to pay the same, and he shall cause all persons doing business without a privilege license as required under this chapter, to be prosecuted. He is further required to make demands in writing for payment of the tax due, plus an initial penalty of ten percent (10%), and thereafter a penalty of one percent (1%) per month for each month or part thereof during which the tax remains delinquent. If payment is not made upon demand, he shall forthwith bring suit in his official character against all such persons legally liable for privilege taxes; and such suits shall be prosecuted to final judgment and execution thereon if the judgment be in favor of the officer. No officer required to collect this tax shall be liable for any costs in such suits.
The officer required to collect privilege taxes shall be liable for the amount of the tax, together with a penalty calculated in the same manner as the penalty for delinquent privilege taxes, that he fails to collect; and the liability of such officer shall extend to all cases where he might collect such taxes but negligently fails to do so.
It is further provided that for willful failure to carry out any of the provisions of this chapter, the officer whose duty it is to collect privilege taxes shall be liable to the state on his official bond for a penalty of One Hundred Dollars ($100.00) for each such failure, and it shall be the duty of the Attorney General to bring suit for such penalty, subject to the provisions of Sections 1 and 2 of this act.
SECTION 52. Section 27-19-155, Mississippi Code of 1972, is amended as follows:
27-19-155. The license or number tag herein provided for shall be purchased by the License Tag Commission, composed of the Governor, Commissioner of Revenue, Attorney General and the State Treasurer, upon competitive bids, after having given three (3) weeks' notice of the time and place of purchase, by publishing said notice in at least three (3) newspapers, at least one (1) of which shall be published in the State of Mississippi, for a period of three (3) weeks prior to the date of purchase. The successful bidder shall enter into a bond with some surety company, authorized to do business in the state, as surety thereon, payable to the State of Mississippi, in a sum equal to the amount of his contract, conditioned for the faithful and prompt carrying out of said bid, and, in the event of the failure to comply with the terms of said contract, the amount of said bond shall be forfeited as liquidated damages and may be recovered by the Attorney General in any appropriate action, subject to the provisions of Sections 1 and 2 of this act. The License Tag Commission is hereby authorized and empowered to renegotiate any contract entered into for the purchase of license tags in order to obtain any other or additional tags necessitated by the passage of this article.
All monies received by the Department of Revenue as registration or tag fees, either from the tax collectors, or from licenses issued by the Department of Revenue, shall be paid into the State Treasury on the same day in which such funds are collected by the Department of Revenue.
SECTION 53. Section 27-33-61, Mississippi Code of 1972, is amended as follows:
27-33-61.
Any county attorney, district attorney, or the Attorney General shall bring
suit and prosecute it to a conclusion, in the name of the state, or county, or
district, when requested to do so by a member of the board of supervisors, or
the * * * Department of Revenue, if upon investigation the
suit appears to be meritorious; except the Attorney General's authority to
bring suit shall be subject to provisions of Sections 1 and 2 of this act.
SECTION 54. Section 27-35-309, Mississippi Code of 1972, is brought forward as follows:
27-35-309. (1) The Department of Revenue shall, if practicable, on or before the first Monday of June of each year, make out for each person, firm, company or corporation listed in Section 27-35-303, Mississippi Code of 1972, an assessment of the company's property, both real and personal, tangible and intangible. The Department of Revenue shall apportion the assessment of value of each company's property according to the provisions of this article, except as provided in subsection (3) of this section, as follows:
(a) When the property of such public service company is located in more than one (1) county in this state, the Department of Revenue shall direct the company to apportion the assessed value between the counties and municipalities and all other taxing districts therein, in the proportion which the property located therein bears to the entire value of the property of such company as valued by the department, so that to each county, municipality and taxing district therein, there shall be apportioned such part of the entire valuation as will fairly equalize the relative value of the property therein located to the whole value thereof.
(b) When the property of such public utility required to be assessed by the provisions of this article is located in more than one (1) state, the assessed value thereof shall be apportioned by the Department of Revenue in such manner as will fairly and equitably determine the principal sum for the value thereof in this state, and after ascertaining such value it shall be apportioned by them as herein provided.
The assessment roll shall contain all the property of any such public service company, railroad, person, firm or corporation and the value thereof, and so made that each county, municipality, and taxing district shall receive its just share of taxes proportionately to the amount of property therein situated.
(2) (a) The assessment when made shall remain open for thirty (30) days in the Office of the Department of Revenue, and be for such time subject to the objections thereto which may be filed with the Executive Director of the Board of Tax Appeals; but real estate belonging to railroads and which forms no part of the road, and is wholly disconnected from its railroad business, shall not be assessed by the Department of Revenue, but shall be assessed as other real estate is assessed by the tax assessor of the county where situated.
(b) The apportionment of the assessed value as required by this section shall be filed with the Department of Revenue by such public service company on or before the first day of August in each year. If such company shall fail, refuse or neglect to render the apportionment of assessed value as required by this section, such company shall be subject to the penalties provided for in Section 27-35-305. The filing of an objection by such public service company shall not preclude such company from filing the property apportionment as required by this section.
(3) Any nuclear generating plant which is located in the state, which is owned or operated by a public utility rendering electric service within the state and not exempt from ad valorem taxation under any other statute and which is not owned or operated by an instrumentality of the federal government shall be exempt from county, municipal and district ad valorem taxes. In lieu of the payment of county, municipal and district ad valorem taxes, such public utility shall pay to the Department of Revenue a sum based on the assessed value of such nuclear generating plant in an amount to be determined and distributed as follows:
(a) The Department of Revenue shall annually assign an assessed value to any nuclear generating plant described in this subsection in the same manner as for ad valorem tax purposes by using accepted industry methods for appraising and assessing public utility property. The assessed value assigned shall be used for the purpose of determining the in-lieu tax due under this section and shall not be included on the ad valorem tax rolls of the situs taxing authority nor be subject to ad valorem taxation by the situs taxing authority nor shall the assessed value assigned be used in determining the debt limit of the situs taxing authority. However, the assessed value so assigned may be used by the situs taxing authority for the purpose of determining salaries of its public officials.
(b) On or before February 1, 1987, for the 1986 taxable year and on or before February 1 of each year through the 1989 taxable year, such utility shall pay to the Department of Revenue a sum equal to two percent (2%) of the assessed value as ascertained by the Department of Revenue, but such payment shall not be less than Sixteen Million Dollars ($16,000,000.00) for any of the four (4) taxable years; all such payments in excess of Sixteen Million Dollars ($16,000,000.00) for these four (4) taxable years shall be paid into the General Fund of the state. On or before February 1, 1991, for the 1990 taxable year and on or before February 1 of each year thereafter, such utility shall pay to the Department of Revenue a sum equal to two percent (2%) of the assessed value as ascertained by the Department of Revenue, but such payment shall not be less than Twenty Million Dollars ($20,000,000.00) for any taxable year for as long as such nuclear power plant is licensed to operate and is not being permanently decommissioned; all such payments in excess of Sixteen Million Dollars ($16,000,000.00) for taxable years 1990 and thereafter shall be paid as follows:
(i) An amount of Three Million Forty Thousand Dollars ($3,040,000.00) annually, beginning with fiscal year 1991, shall be transferred by the Department of Revenue to Claiborne County. Such payments may be expended by the Board of Supervisors of Claiborne County for any purpose for which a county is authorized by law to levy an ad valorem tax and shall not be included or considered as proceeds of ad valorem taxes for the purposes of the growth limitation on ad valorem taxes under Sections 27-39-305 and 27-39-321. However, should the Board of Supervisors of Claiborne County withdraw its support of the Grand Gulf Nuclear Station off-site emergency plan or otherwise fail to satisfy its off-site emergency plan commitments as determined by the Mississippi Emergency Management Agency and the Federal Emergency Management Agency, Five Hundred Thousand Dollars ($500,000.00) annually of the funds designated for Claiborne County as described by this subsection (i) shall be deposited in the Grand Gulf Disaster Assistance Fund as provided in Section 33-15-51.
(ii) An amount of One Hundred Sixty Thousand Dollars ($160,000.00) annually, beginning with fiscal year 1991, shall be transferred by the Department of Revenue to the City of Port Gibson, Mississippi. Such payments may be expended by the Board of Aldermen of the City of Port Gibson for any purpose for which a municipality is authorized by law to levy an ad valorem tax and shall not be included or considered as proceeds of ad valorem taxes for the purposes of the growth limitation on ad valorem taxes under Sections 27-39-305 and 27-39-321. However, should the Board of Aldermen of the City of Port Gibson withdraw its support of the Grand Gulf Nuclear Station off-site emergency plan or otherwise fail to satisfy its off-site emergency plan commitment, as determined by the Mississippi Emergency Management Agency and the Federal Emergency Management Agency, Fifty Thousand Dollars ($50,000.00) annually of the funds designated for the City of Port Gibson as described by this subsection (ii) shall be deposited in the Grand Gulf Disaster Assistance Fund as provided in Section 33-15-51.
(iii) The remaining balance of the payments in excess of Sixteen Million Dollars ($16,000,000.00) annually, less amounts transferred under (i) and (ii) of this subsection, beginning with fiscal year 1991, shall be allocated in accordance with subsection (3)(f) of this section.
(c) Pursuant to certification by the Attorney General to the State Treasurer and the State Tax Commission that the suit against the State of Mississippi pending on the effective date of House Bill 8, First Extraordinary Session of 1990, [Laws, 1990 Ex Session, Ch. 12, eff June 26, 1990], in the Chancery Court for the First Judicial District of Hinds County, Mississippi, styled Albert Butler et al v. the Mississippi State Tax Commission et al, has been voluntarily dismissed with prejudice as to all plaintiffs at the request of the complainants and that no attorney's fees or court costs have been assessed against the state and each of the parties, including Claiborne County and each municipality and school district located in the county, have signed and delivered to the Attorney General a full and complete release in favor of the State of Mississippi and its elected officials of all claims that have been asserted or may be asserted in the suit pending on the effective date of House Bill 8, First Extraordinary Session of 1990, [Laws, 1990 Ex Session, Ch. 12, eff June 26, 1990], in the Chancery Court for the First Judicial District of Hinds County, Mississippi, styled Albert Butler et al v. the Mississippi State Tax Commission et al, and the deposit into the State General Fund of in-lieu payments and interest thereon due the state under subsection (3)(b) of this section but placed in escrow because of the lawsuit described above, the state shall promptly transfer to the Board of Supervisors of Claiborne County out of the State General Fund an amount of Two Million Dollars ($2,000,000.00) which shall be a one-time distribution to Claiborne County from the state. Such payment may be expended by the Board of Supervisors of Claiborne County for any purposes for which a county is authorized by law to levy an ad valorem tax and shall not be included or considered as proceeds of ad valorem taxes for the purposes of the growth limitation on ad valorem taxes for the 1991 fiscal year under Sections 27-39-321 and 27-39-305.
(d) After distribution of the one-time payment to Claiborne County as set forth in subsection (3)(c) of this section, the Department of Revenue upon certification that the pending lawsuit as described in subsection (3)(c) of this section has been voluntarily dismissed shall promptly deposit an amount of Five Hundred Thousand Dollars ($500,000.00) into the Grand Gulf Disaster Assistance Trust Fund as provided for in Section 33-15-51, which shall be a one-time payment, to be utilized in accordance with the provisions of such section.
(e) After distribution of the one-time payment to Claiborne County as set forth in subsection (3)(c) of this section and the payment to the Grand Gulf Disaster Assistance Trust Fund as set forth in subsection (3)(d) of this section, the Department of Revenue upon certification that the pending lawsuit as described in subsection (3)(c) of this section has been voluntarily dismissed shall promptly distribute ten percent (10%) of the remainder of the prior payments remaining in escrow to the General Fund of the state and the balance of the prior payments remaining in escrow shall be distributed to the counties and municipalities in this state wherein such public utility has rendered electric service in the proportion that the amount of electric energy consumed by the retail customers of such public utility in each county, excluding municipalities therein, and in each municipality, for the next preceding fiscal year bears to the total amount of electric energy consumed by all retail customers of such public utility in the State of Mississippi for the next preceding fiscal year. The payments distributed to the counties and municipalities under this paragraph (e) may be expended by such counties and municipalities for any lawful purpose and shall not be included or considered as proceeds of ad valorem taxes for the purposes of the growth limitation on ad valorem taxes under Sections 27-39-321 and 27-39-305.
(f) After distribution of the payments for fiscal year 1991 as set forth in Section 19-9-151 and distribution of the payments as provided for in subsection (3)(b) of this section, the Department of Revenue shall distribute ten percent (10%) of the remainder of the payments to the General Fund of the state and the balance to the counties and municipalities in this state wherein such public utility renders electric service in the proportion that the amount of electric energy consumed by the retail customers of such public utility in each county, excluding municipalities therein, and in each municipality for the next preceding fiscal year bears to the total amount of electric energy consumed by all retail customers of such public utility in the State of Mississippi for the next preceding fiscal year.
(g) No county, including municipalities therein, shall receive in excess of twenty percent (20%) of the funds distributed under paragraph (f) of this subsection.
(h) The revenues received by counties and municipalities under paragraph (f) of this subsection shall not be included or considered as proceeds of ad valorem taxes for the purposes of the growth limitation on ad valorem taxes under Sections 27-39-305 and 27-39-321.
SECTION 55. Section 27-35-325, Mississippi Code of 1972, is amended as follows:
27-35-325. The Department of Revenue is hereby authorized and empowered and it shall be its duty to assess any property required to be assessed by the Department of Revenue as the state assessor of railroads, which it discovers escaping taxation in former years by reason of not being assessed; and to assess or cause to be assessed and taxed, any such property which it discovers escaping taxation by reason of not being assessed in or for the benefit of any road district, school district, or other taxing district or municipality, although the property may have been assessed and taxed for state and general county taxes; however, the right to so assess property shall expire at the end of seven (7) years from the date when the right so to do first accrued. When any property is discovered escaping assessment and taxation which, under the law, is required to be assessed by the Department of Revenue as state assessor of railroads, the Department of Revenue shall assess the same for such purpose and for the years it has escaped taxation, and shall give notice by United States mail, or otherwise, by the Commissioner of Revenue of the Department of Revenue to the owner of the property, or agent, of such owner, showing what property has escaped assessment and for what years, and all other proper information, and the owner shall have thirty (30) days in which to file objections. The Department of Revenue shall deal with the assessment in all respects with the same powers as if made at the time regular assessment of such property is made, and shall have power to require such information as it may desire for the correct determination of all questions before it. When any objection is heard and determined, the Board of Tax Appeals shall by order approve or disapprove, or may modify the assessment, and make it final. If no objection is made in regard to the assessment or if the assessment is approved or modified by the Board of Tax Appeals, the Department of Revenue shall certify it to the clerk of the board of supervisors of the county or counties where the property is located, and such assessment shall be dealt with by the clerk and tax collector as is required in cases of assessments when made at the regular time. In all cases where suit is necessary, it shall be the duty of the Attorney General to represent the Department of Revenue whenever requested to do so, subject to the provisions of Sections 1 and 2 of this act.
SECTION 56. Section 27-41-83, Mississippi Code of 1972, is amended as follows:
27-41-83. The owner of lands sold or struck off to this state as provided in Section 27-41-81 shall not have the right to cut merchantable timber, cordwood or brush from any such land until such land be redeemed from the tax sale and title again be perfected in the individual owner thereof, and such former owner of said property during the period of redemption shall not have the right to prospect for or to extract and/or attempt to extract from any such lands so forfeited to the state for nonpayment of taxes any minerals, stone or gravel that may be found on or under said land, and provided further that the former owner of any land so forfeited to the state for nonpayment of taxes shall commit no waste on the lands or premises so forfeited to the state during the period of redemption.
If the former owner or any other person in violation of the provisions of this section cuts, fells, removes or otherwise injures any tree on property forfeited to the state for taxes either during the period of redemption or after the title matures in the state, or extracts, or attempts to extract, minerals therefrom including rock, stone and gravel, commits or permits to be committed waste or any other trespass on such land, such person shall be liable for a penalty in the sum of Five Dollars ($5.00) per acre for each acre upon which any trespass or violation of this section is committed, and, in addition to said penalty, such person shall be liable for actual damages for the property taken or injured. All such penalties and damages may be recovered in one and the same action and suits to recover the same shall be instituted and prosecuted in the name of the state by the Attorney General, subject to the provisions of Sections 1 and 2 of this act, and any penalties and damages recovered in such actions shall be apportioned fifty percent (50%) to the state and fifty percent (50%) to the county in which the land lies. Provided that during the period of redemption the owner may cut and use wood from contiguous woodlands for fuel, fences and like farm purposes, but not for sale.
Any person violating any of the provisions of this section shall be guilty of a misdemeanor and, upon conviction therefor, shall be fined not less than Ten Dollars ($10.00) nor more than Fifty Dollars ($50.00), in the discretion of the court, and upon the second offense, may be sentenced to serve not more than sixty (60) days in the county jail, in the discretion of the trial court.
SECTION 57. Section 27-41-85, Mississippi Code of 1972, is amended as follows:
27-41-85. The Attorney General, by and with the consent of the Governor, may employ special counsel to assist him in the investigation and prosecution of such claims or demands and suits under Section 27-41-83, subject to the provisions of Sections 1 and 2 of this act; and he may contract to pay such attorneys so employed such reasonable compensation as may be agreed upon, not to exceed twenty percent (20%) of the amount recovered and collected.
SECTION 58. Section 27-41-87, Mississippi Code of 1972, is brought forward as follows:
27-41-87. The board of supervisors of any county affected is hereby authorized to pay such reasonable expenses, except attorneys' fees, as may be incurred in obtaining information deemed necessary to maintain an action under Section 27-41-83.
In any case where funds are received by the Attorney General in consequence of any action or demand under Section 27-41-83, involving lands in more than one (1) county, and where the court in which said suit was filed does not allot the funds between said counties, or where said counties cannot agree among themselves as to the proper distribution of such funds, then the Attorney General may apply to the chancery court in the county where the land or some part thereof is located in vacation or in term time for an allotment and distribution of the funds between the counties. It shall be the duty of the Attorney General in such case to notify the interested counties that he has filed such application, and he shall notify them when and where said application will be heard. The judgment of the chancellor in such matters will be final, and the Attorney General shall distribute said funds in accordance with the chancellor's order, and a copy of said order shall be filed with the chancery clerk in each of the interested counties. The counties shall have the right to agree among themselves as to the proper distribution of any such fund; and where such agreement is had, it shall be entered on the minutes of the board of supervisors in each county, and the Attorney General shall then distribute the funds in accordance therewith. However, it shall be the duty of the court hereafter, in which suit is filed or tried, to make proper distribution of such funds between said counties.
SECTION 59. Section 27-45-21, Mississippi Code of 1972, is amended as follows:
27-45-21. (1) It shall be the duty of the chancery clerk, within thirty (30) days after the period of redemption has expired, to certify to the Secretary of State a list, on forms provided by the Secretary of State, of all lands struck off to the state for taxes, which have not been redeemed. The list shall show a description of the land, all costs, officer's and printer's fees, the tax for which it sold, segregated as to state, county, levee and drainage districts, and of all taxes due on the lands for the year in which it was struck off to the state, segregated as to state, county, levee and drainage districts, a total of two (2) years' taxes listed separately (the taxes for which it sold and accrued taxes for one (1) year). If any chancery clerk shall fail or neglect to transmit such lists within the time specified, he shall be liable to the state on his official bond in the penalty of Fifty Dollars ($50.00) for each day that he is in default. The penalty to be collected by the Department of Revenue, or by the Attorney General, in a suit instituted for that purpose, subject to the provisions of Sections 1 and 2 of this act, and upon request of the Secretary of State; provided that the Secretary of State, if so requested by any chancery clerk before the expiration of ten (10) days and for good cause shown, may grant a reasonable extension of the time within which the clerk shall transmit his list.
(2) The Secretary of State may provide the forms described in subsection (1) of this section for certifying lands struck off to the state for taxes to the chancery clerk as an electronic record. The chancery clerk may certify the list of all lands struck off to the state by completing and submitting the form containing the electronic signature of the chancery clerk to the Secretary of State. An electronic record of the list submitted by the chancery clerk to the Secretary of State in the prescribed form and containing the electronic signature of the chancery clerk shall vest good title in the State of Mississippi to all lands listed in the form.
SECTION 60. Section 27-65-81, Mississippi Code of 1972, is amended as follows:
27-65-81. (1) Applications, returns and information contained therein filed or furnished under this chapter shall be confidential, and except in accordance with proper judicial order, or as otherwise authorized by this section or as authorized by Section 27-4-3, it shall be unlawful for the Commissioner of Revenue or any deputy, agent, clerk or other officer or employee of the Department of Revenue or Department of Information Technology Services, or any former employee thereof, to divulge or make known in any manner the amount of income or any particulars set forth or disclosed on any application, report or return required.
The term "proper judicial order" as used in this section shall not include subpoenas or subpoenas duces tecum but shall include only those orders entered by a court of record in this state after furnishing notice and a hearing to the taxpayer and the Department of Revenue. The court shall not authorize the furnishing of such information unless it is satisfied that the information is needed to pursue pending litigation wherein the return itself is in issue, or the judge is satisfied that the need for furnishing the information outweighs the rights of the taxpayer to have such information secreted.
(2) Such information contained on the application, returns or reports may be furnished to:
(a) Members and employees of the Department of Revenue and the income tax department thereof, for the purpose of checking, comparing and correcting returns;
(b) The Attorney General, or any other attorney representing the state in any action in respect to the amount of tax under the provisions of this chapter, subject to the provisions of Sections 1 and 2 of this act;
(c) The revenue department of other states or the federal government when said states or federal government grants a like comity to Mississippi.
(3) The State Auditor and the employees of his office shall have the right to examine only such tax returns as are necessary for auditing the Department of Revenue, and the same prohibitions against disclosure which apply to the Department of Revenue shall apply to the State Auditor and his office.
(4) Officers and employees of the Mississippi Development Authority who execute a confidentiality agreement with the Department of Revenue shall be authorized to discuss and examine information to which this section applies at the offices of the Mississippi Department of Revenue. This disclosure is limited to information necessary to properly administer the programs under the jurisdiction of the Mississippi Development Authority. The Department of Revenue is authorized to disclose to officers and employees of the Mississippi Development Authority who execute a confidentiality agreement the information necessary under the circumstances. The same prohibitions against disclosure which apply to the Department of Revenue shall apply to the officers or employees of the Mississippi Development Authority.
(5) Information required by the University Research Center to prepare the analyses required by Sections 57-13-101 through 57-13-109 shall be furnished to the University Research Center upon request. It shall be unlawful for any officer or employee of the University Research Center to divulge or make known in any manner the amount of income or any particulars set forth or disclosed in any information received by the center from the Department of Revenue other than as may be required by Sections 57-13-101 through 57-13-109 in an analysis prepared pursuant to Sections 57-13-101 through 57-13-109.
(6) Information required by the Mississippi Development Authority to prepare the reports required by Section 57-1-12.2 shall be furnished to the Mississippi Development Authority upon request. It shall be unlawful for any officer or employee of the Mississippi Development Authority to divulge or make known in any manner the amount of income or any particulars set forth or disclosed in any information received by the Mississippi Development Authority from the Department of Revenue other than as may be required by Section 57-1-12.2 in a report prepared pursuant to Section 57-1-12.2.
(7) Information necessary to comply with Chapter 13, Title 85, may be furnished to financial institutions. It shall be unlawful for any officer or employee of the financial institution to divulge or make known in any manner the amount of income or any particulars set forth or disclosed in any information received by the financial institution from the Department of Revenue other than as may be authorized by Chapter 13, Title 85.
(8) Nothing in this section shall prohibit the Commissioner of Revenue from making available information necessary to recover taxes owing the state pursuant to the authority granted in Section 27-75-16.
(9) The Department of Revenue is authorized to disclose to the Child Support Unit and to the Fraud Investigation Unit of the Department of Human Services without the need for a subpoena or proper judicial order the name, address, social security number, amount of income, amount of sales tax, source of income, assets and other relevant information, records and tax forms for individuals who are delinquent in the payment of any child support as defined in Section 93-11-101 or who are under investigation for fraud or abuse of any state or federal program or statute as provided in Section 43-1-23.
SECTION 61. Section 27-73-1, Mississippi Code of 1972, is brought forward as follows:
27-73-1. (1) If any person, firm or corporation has paid, or shall hereafter pay to the Auditor of Public Accounts or the Commissioner of Insurance, through error or otherwise, whether paid under protest or not, any ad valorem, privilege or excise tax for which the person, firm or corporation was not liable, or if any such taxpayer has paid any tax in excess of the sum properly due and such erroneous payment or overpayment has been paid into the proper treasury, the taxpayer shall be entitled to a refund of the taxes so erroneously paid. Taxes erroneously paid within the meaning of this section shall include double payment, or overpayment, or payment on state, United States, vacant and exempt land, and the purchase price paid for the redemption of lands erroneously sold for taxes.
Claims for refund under the provisions of this section shall be filed with the Auditor of Public Accounts and shall be supported by proper documents showing the overpayment or erroneous payment for which claim is made. The auditor is hereby authorized and required to make a careful investigation and audit of all such claims and if he shall find that the taxes or monies covered by the claim have been erroneously paid into the treasury of the state, county, drainage or levee districts, he shall distribute the claim against each separate fund in proportion to the amount paid over to such fund in each case, and submit the audited claim with the voucher and evidence upon which the claim is based, to the Attorney General for his approval. The Attorney General shall have plenary power to require the claimant or the officer who collected the tax to furnish any additional documents or information as may in his opinion be necessary or proper to enable him to determine the merits of the claim.
If the Attorney General shall be of the opinion that the claim is in proper form and complies with the requirements of this section, he shall approve the claim and return it to the Auditor of Public Accounts, who shall thereupon file in his office the audited claim, together with the Attorney General's approval and all other documents relating to the claim, as a voucher, and issue his warrant on the State Treasurer in favor of the claimant for the amount of purchase money or taxes erroneously paid into the State Treasury. The auditor shall then certify to the clerk of the board of supervisors, the secretary of the drainage district board, or the secretary of the levee board, as the case may be, the amount, if any, found to be due to the claimant by the county, drainage district or levee district. Upon receipt of the certificate, the board of supervisors, or the commissioners of the drainage district or of the levee district, shall cause a warrant to be issued on the treasurer of the county or drainage or levee district, as the case may be, in favor of the claimant for the amount erroneously paid into their respective treasuries.
If the Attorney General shall disapprove the claim, he shall return it to the Auditor of Public Accounts accompanied by his opinion which shall show the reason for his disapproval, whereupon the auditor shall promptly notify the claimant of the disapproval. A claimant taxpayer being aggrieved at the disapproval may, within six (6) months from the date thereof, file in the chancery court his petition for appeal and review. All petitions for appeal and review shall be filed in the chancery court of the county in which the money for which refund is claimed was originally paid, and shall be accompanied by a bond in the sum of Five Hundred Dollars ($500.00) conditioned to pay all costs which may accrue in the case, which bond shall be approved by the clerk of the court. Upon the approval of the bond, the chancery clerk shall give the Attorney General and the Auditor of Public Accounts notice, as required by law, of the filing of the petition. It shall be the duty of the auditor to promptly transmit to the court in which the appeal is pending a certified copy of the entire record of the claim as shown by the files in his office, which record shall be docketed by the clerk in the cause, and the controversy shall be tried by the court on such record. It shall be the duty of the Attorney General to defend on behalf of the state, and he may request the district attorney, county attorney or attorney for the drainage or levee district, as the case may be, to defend on behalf of the county, drainage or levee district. If the claimant taxpayer shall prevail, judgment shall be entered requiring the payment of the claim in like manner as if it had been duly approved by the Attorney General. If, however, the action of the Attorney General in disapproving the claim shall be affirmed by the court, judgment shall be entered against the appealing taxpayer for the costs of the proceedings.
Nothing in this section shall be so construed as to authorize the recovery or repayment of any tax heretofore levied and collected by any special road district, drainage district, or separate school district, on account of, or upon the ground that the law authorizing such tax was unconstitutional, whether the unconstitutionality of such tax be based upon the creation or mode of operation of any special road district, drainage district or separate school district. Provided further, that nothing in this section shall be construed as authorizing the refunding of state taxes paid into the State Treasury through error, or otherwise, or satisfying a judgment or decree against the state except through an appropriation therefor by the Legislature.
(2) This section shall not be construed as repealing or modifying Section 27-73-7, or any other law providing for the application for or the certification of a claim for refund, but shall be taken and construed as an additional and supplemental method of refunding taxes erroneously paid.
SECTION 62. Section 27-75-13, Mississippi Code of 1972, is amended as follows:
27-75-13. The Attorney General of the State of Mississippi, or the officer authorized by the law of the State of Mississippi to collect the tax owing to the State of Mississippi, or its political subdivisions, is hereby empowered in his official capacity to bring and prosecute to final judgment or decree suits in the courts of other states or territories of the United States and the District of Columbia in the name of the State of Mississippi, or its political subdivisions, to recover any taxes, as defined in this chapter, and which includes penalties and interest, which are now or may hereafter be owing to the State of Mississippi, or its political subdivisions, subject to the provisions of Sections 1 and 2 of this act, and to take such other proceedings as authorized by the laws of the state where the suit is brought to collect or enforce any judgment or decree rendered therein. The officer bringing such suit is authorized to pay any court costs or court fees which may be incurred in such suit and required to be paid by the laws of the state, territory or District of Columbia wherein the action is brought, and such court costs or fees may be paid out of the fund appropriated for the operation of the office of such officer bringing said suit, and any political subdivision of the state may allow or appropriate funds necessary to pay such costs.
SECTION 63. Section 27-75-15, Mississippi Code of 1972, is amended as follows:
27-75-15. The Attorney General or the officer authorized by the law of the State of Mississippi to collect any tax owing to the State of Mississippi or its political subdivisions, is hereby authorized to employ attorneys residing in a sister state, district or territory, where suits are instituted to recover taxes due the State of Mississippi, pursuant to this chapter, to aid and assist in the prosecution of any such suit, when it appears to be in the best interest of the State of Mississippi, subject to the provisions of Sections 1 and 2 of this act. It is further provided that such attorney fees may, within the discretion of the designated officers, be set on a fixed or contingent fee basis. The fixed fee shall be paid out of the fund appropriated for the operation of the office of such officer bringing suit, and the contingent fee shall be deducted from and paid out of the proceeds of the particular claim, subject, however, to the approval of the Governor as to the employment and amount of such fee in either instance.
SECTION 64. Section 27-77-15, Mississippi Code of 1972, is brought forward as follows:
27-77-15. (1) Except as otherwise provided in this section, it shall be unlawful for the executive director, the Board of Tax Appeals, the commissioner, the agency, or an officer, agent or employee of the agency or the Board of Tax Appeals, to divulge or make known in any manner the information contained in the files, records and orders of the agency, a hearing officer of the agency, the board of review or the Board of Tax Appeals in regard to an appeal to a hearing officer, the board of review or the Board of Tax Appeals under this chapter.
(2) For purposes of this section, the term "appellant" means the taxpayer, IFTA licensee, IRP registrant, permittee, tag holder or title interest holder who filed the appeal to the board of review or the Board of Tax Appeals under this chapter which resulted in the files, records and orders of that appeal.
(3) The executive director, the Board of Tax Appeals, the commissioner, the agency, hearing officer or an agent or employee of the agency or the Board of Tax Appeals is permitted to divulge and make known information otherwise prohibited from disclosure under subsection (1) of this section in any of the following circumstances:
(a) Where the information is being disclosed as a result of complying with the provisions of this chapter and/or with regulations promulgated to enforce the provisions of this chapter.
(b) Where the information is being provided to the appellant or his designated representative.
(c) Where the information is being disclosed to employees or officers of the agency.
(d) Where the information is being provided or disclosed pursuant to a written authorization executed by the appellant as prescribed by regulation.
(e) Where the information is being provided or disclosed in the course of a court action in which the agency, the Board of Tax Appeals, the commissioner, an officer or employee of the agency or the Board of Tax Appeals and the appellant are parties, including, but not limited to, an action brought under this chapter or in the course of the bankruptcy case of the appellant.
(f) Where the information is being provided to the Internal Revenue Service or a taxing authority of another state under an information exchange agreement where similar information can be obtained by the agency from the Internal Revenue Service or state taxing authority receiving the information.
(g) Where the information is being provided pursuant to the International Registration Plan (IRP) or the International Fuel Tax Agreement (IFTA) or any regulations, rules or procedures adopted under such plan or agreement.
(h) Where the disclosure of information is authorized under Section 27-19-123, 27-55-49, 27-55-557, 27-57-39, 27-59-53 or 27-61-20.
(i) Where the information is being provided to the State Auditor or his employees in the course of his audit of the agency; however, the prohibitions against disclosure which apply to the agency shall also apply to the State Auditor and his employees or former employees.
(j) Where the information is being provided to the Attorney General or any other attorney representing the state or the agency in an action brought by the appellant to set aside the tax, in an action brought by the state or agency to recover the tax imposed, or in an action where the appellant is being prosecuted for a crime under the tax laws of this state.
(k) Where the information is being provided by the commissioner to a contractor of collection services pursuant to the authority granted the commissioner in Section 27-75-16.
(l) Where the information is being provided in accordance with a proper judicial order. The term "proper judicial order" as used in this paragraph shall not include subpoenas or subpoenas duces tecum, but shall include only those orders entered by a court of record in this state after furnishing notice and a hearing to the appellant and the Department of Revenue. The court shall not authorize the furnishing of such information unless it is satisfied that the information is needed to pursue pending litigation in which the information itself is in issue, or the judge is satisfied that the need for furnishing the information outweighs the rights of the appellant to have such information secreted.
(4) Nothing in subsection (1) of this section shall prohibit the inspection or disclosure of the minutes of the Board of Tax Appeals except to the extent that such minutes reflect the specific amount of a tax assessment or refund claim or the specific amount of tax or refund claim determined by the Board of Tax Appeals to be due.
(5) Information that is prohibited from being disclosed in subsection (1) of this section shall be exempt from the provisions of the Mississippi Public Records Act of 1983.
(6) Due to the need to discuss confidential tax information, the hearings before a hearing officer, the board of review and the Board of Tax Appeals under this chapter, and the meetings in which the board of review and the Board of Tax Appeals deliberate and vote on the issues raised at such hearings shall be exempt from the provisions of Section 25-41-1 et seq.
SECTION 65. Section 27-104-29, Mississippi Code of 1972, is amended as follows:
27-104-29. (1) The Legislative Budget Office or the State Fiscal Officer may request and the Attorney General is authorized, upon receipt of such request, to bring an injunctive action against any special-fund agency failing to comply with the terms of Sections 27-103-101 through 27-103-139 and 27-104-1 through 27-104-29, subject to the provisions of Sections 1 and 2 of this act.
(2) Such injunctive action by the Attorney General may be either a mandatory injunction to force the filing of the required budget or a prohibitory injunction to prevent the special-fund agency from engaging in further business or other activities until such time as the terms of Sections 27-103-101 through 27-103-139 and 27-104-1 through 27-104-29 have been complied with.
SECTION 66. Section 27-105-25, Mississippi Code of 1972, is amended as follows:
27-105-25. (1) In the event of the failure of any public funds depository to pay any check lawfully issued by the State of Mississippi or any agency or department of the state or any county, municipality or other governmental unit on any funds on deposit belonging to the State of Mississippi or any agency or department of the state or any county, municipality or other governmental unit in the depository, the State Treasurer is empowered to sell such securities as are placed with him by the depository, or so much of them as is necessary to cover back into the Treasury of the State of Mississippi or any agency or department of the state or any county, municipality or other governmental unit the amount of state funds on deposit with the depository with accrued interest thereon in excess of applicable deposit insurance, and the sale of the securities shall be made by the State Treasurer at the best price that he can obtain at either public or private sale, and in the event of the failure of the depository to pay any check when the depository has placed as security surety bonds, the Treasurer shall notify the Attorney General and that officer shall take such immediate action as he may deem most expedient for covering back into the Treasury of the State of Mississippi or any agency or department of the state or any county, municipality or other governmental unit all state money on deposit in the depository, subject to the provisions of Sections 1 and 2 of this act. In addition, the Attorney General is authorized to employ counsel, if necessary, to more speedily enforce the payment and expense of that collection, including counsel fees, to be charged against the depository, and, in addition thereto, the depository will be liable for damages at the rate of one percent (1%) per month for any delay in paying over any state funds when demanded, and the bond of any depository shall be liable for those expenses and damages.
(2) If the loss to the State of Mississippi or any agency or department of the state or any county, municipality or other governmental unit (hereinafter "public depositors") of the depository that is also a public funds guaranty pool member is not covered by deposit insurance or the proceeds of the sale of securities, the State Treasurer shall provide coverage of the remaining loss by assessment against the other public funds guaranty pool members. The assessment shall be determined by multiplying the total amount of the loss to all public depositors by a percentage that represents the share of public fund deposits held by the depository divided by the total public deposits held by all public funds guaranty pool members, excluding the public deposits of the defaulting depository, as determined by the State Treasurer from the average of the six (6) most recent month-end reports of the public funds guaranty pool members provided under Section 27-105-6. Each public funds guaranty pool member shall pay its assessment to the State Treasurer within seven (7) business days after it receives notice of the assessment. If a public funds guaranty pool member fails to pay its assessment when due, the State Treasurer shall satisfy the assessment by selling securities pledged by any depository failing to pay the assessment.
(3) The State Treasurer shall distribute the funds to the public depositors of the public funds depository in default according to their validated claims.
(4) Public depositors receiving payment under the provisions of this section shall assign to the State Treasurer any interest they may have in funds that may subsequently be made available to the depository in default, if the depository in default or its receiver provides funds to the State Treasurer, the State Treasurer shall distribute the funds, plus all accrued interest that has accumulated from the investment of the funds, if any, to the public funds guaranty pool members that paid assessments on the same pro rata basis as the assessments were paid.
SECTION 67. Section 29-1-7, Mississippi Code of 1972, is brought forward as follows:
29-1-7. The Land Commissioner may prosecute suits in the name of the state, concerning the public lands, through the Attorney General, subject to the provisions of Sections 1 and 2 of this act, a district attorney, or some attorney at law employed by him for that purpose, with the consent of the Governor.
SECTION 68. Section 29-1-137, Mississippi Code of 1972, is amended as follows:
29-1-137. The Attorney General of the state shall act as attorney for the commission and shall advise it as to all questions arising in connection with the administration of Sections 29-1-125 through 29-1-143, and as to all matters in controversy. He shall represent the commission in any and all suits at law or equity arising from the administration of said sections, and shall bring suit for the collection of any sum due the state on behalf of the commission, as the agent of the state, in all cases which he believes the conditions warrant suit, subject to the provisions of Sections 1 and 2 of this act. He may, if deemed advisable, sue in his own name as the chief law officer of the state. He shall represent the commission in all cases involving the title of lands in question, and on any and all other matters arising from the administration of the cited sections.
The Attorney General may request and direct any district attorney to aid in the trial of any suit in the district which he serves and, when so requested, the district attorney shall assist in the conduct and trial of any suit in his district; but the Attorney General shall prepare all bills, declarations, and pleadings.
SECTION 69. Section 29-3-9, Mississippi Code of 1972, is amended as follows:
29-3-9. In all cases where this chapter has not been complied with, the official involved shall forthwith comply with same. It shall be the duty of the state land commissioner to ascertain whether or not said statutes have been complied with. If said state land commissioner shall find that said statutes have not been complied with in any case, he shall call the same to the attention of the board of education involved. If any board of education shall fail or refuse to comply with the mandate of this section, then the action of mandamus shall lie to compel such compliance, and such action may be brought either by the Attorney General, subject to the provisions of Sections 1 and 2 of this act, or any resident citizen of the State of Mississippi on the relation of the Attorney General. If the state land commissioner shall find that any board of education is failing to take the necessary steps to effectively comply with said statutes in any case, he shall so certify to the Attorney General. It shall thereupon be the duty of the Attorney General to institute an action for issuance of a writ of mandamus as hereinabove provided, and to such end he is hereby authorized and empowered to employ competent local counsel to assist him in the prosecution of the same. It shall also be the duty of the state land commissioner in conjunction with the Attorney General, to submit a special report in writing to the next regular session of the Legislature, which said report shall set forth any instances of noncompliance with said chapter and the steps which have been taken to secure compliance with same.
SECTION 70. Section 31-7-127, Mississippi Code of 1972, is amended as follows:
31-7-127. In order to ensure the proper enforcement of Sections 31-7-101 through 31-7-127, as well as to ensure the enforcement of all other laws pertaining to county government or the board of supervisors, the district attorney, in addition to any other powers he already has, shall have the power to investigate the personnel, records or supervisors of any county in his district and shall have the power to bring criminal or civil actions to recover funds illegally spent, to recover damages, or to seek injunctive relief to prevent unlawful acts or compel lawful ones by supervisors or other personnel of county government. In the event of a refusal or failure of the district attorney to act, the Attorney General in a proper case may exercise the above powers of the district attorney, notwithstanding the absence of a request for investigation or action by the district attorney, subject to the provisions of Sections 1 and 2 of this act.
SECTION 71. Section 31-17-59, Mississippi Code of 1972, is amended as follows:
31-17-59. It shall be the duty of the Auditor and the State Treasurer, within sixty (60) days after the close of each fiscal year, to check the records in their offices and ascertain definitely the amount of bonds and interest coupons which have matured more than twelve (12) months before the close of the last fiscal year and which have not been paid; and if it shall appear that funds for the payment of such bonds and coupons have been forwarded to the paying agent and have not been used for the purpose of paying such bonds and coupons, it shall be the duty of the State Treasurer to make demand upon the paying agent for the repayment of said funds into the State Treasury within thirty (30) days from the date of such demand.
In like manner, it shall be the duty of the clerk of the board of supervisors of each county and of the municipal clerk of each municipality, within sixty (60) days after the close of each fiscal year, to check the bond register and other records in his office and ascertain definitely the amount of bonds and interest coupons of the county, any taxing district, or of the municipality, as the case may be, which have matured more than twelve (12) months before the close of the last fiscal year and which have not been paid; and if it shall appear that funds for the payment of such bonds and coupons have been forwarded to the paying agent and have not been used for the purpose of paying such bonds and coupons, it shall be the duty of the clerk of the board of supervisors, or the municipal clerk, as the case may be, to make demand upon the paying agent for the repayment of said funds into the county depository or municipal depository, as the case may be, within thirty (30) days from the date of such demand.
In the event such paying agent shall fail to refund into the State Treasury, the county depository, or municipal depository, as the case may be, such unexpended balance or balances as provided for in Sections 31-17-57 and 31-17-59, it shall be the duty of the Attorney General on behalf of the state subject to the provisions of Sections 1 and 2 of this act, or the board of supervisors or municipal authorities on behalf of the county or municipality, as the case may be, to cause suit to be instituted for the recovery of such funds.
SECTION 72. Section 31-19-25, Mississippi Code of 1972, is amended as follows:
31-19-25. All bonds issued pursuant to any laws of this state and hereafter sold by the governing authority of or on behalf of any county, road district, school district, drainage district or other political subdivision or instrumentality of this state shall be advertised for sale on sealed bids or at public auction. Such advertisement shall be published at least two (2) times in a newspaper published in the county in which the political subdivision or instrumentality is situated, and if no newspaper is published in such county, then in a newspaper published in an adjoining county; with respect to a political subdivision or instrumentality which is composed of more than one (1) county, such advertisement shall be published at least two (2) times in a newspaper having a general circulation in each county all or a portion of which is part of the political subdivision or instrumentality. The first publication in each case shall be made at least ten (10) days preceding the date fixed for the reception of bids, and such notice shall give the time and place of sale.
The governing authority may reject any and all bids, whether so stated in the notice of sale or not. If the bonds are not sold pursuant to such advertisement, they may be sold by the governing authority by private sale at any time within sixty (60) days after the date advertised for the reception of bids; but no such private sale shall be made at a price less than the highest bid which shall have been received pursuant to such advertisement. If not so sold at private sale, said bonds shall be readvertised in the manner herein prescribed.
Every bid for the purchase of any of such bonds shall be accompanied by a cashier's check, certified check or exchange, payable to the proper governing authority, issued or certified by a bank located in this state in the amount of not less than two percent (2%) of the par value of the bonds offered for sale, as a guaranty that the bidder will carry out his contract and purchase the bonds if the bid is accepted. If the successful bidder fails to purchase the bonds pursuant to his bid and contract, the amount of such good faith check shall be retained by the governing authority and covered into the proper fund as liquidated damages for such failure.
This section shall not apply to the sale of bonds by the State of Mississippi through the State Bond Commission or the sale of bonds or any other indebtedness incurred by a county in connection with a project as defined under Section 57-75-5(f)(xxviii) or Section 57-75-5(f)(xxix).
A failure to comply with any provision of this section shall not invalidate such bonds, but any member of the governing board, commission or other governing authority who shall willfully violate any of said provisions and shall willfully fail to give the notices herein required shall be liable personally and on his official bond for a penalty in each case of Five Hundred Dollars ($500.00) and, in addition thereto, for all financial loss that may result to the county, municipality, road district, school district, drainage district or other political subdivision or instrumentality of the state or county resulting from such willful failure to comply herewith. Such penalty and damages may be recovered by suit of the Attorney General, subject to the provisions of Sections 1 and 2 of this act, a district attorney or of any citizen of such county or other political subdivision in any court of competent jurisdiction, for the use and benefit of the county or other such political subdivision or instrumentality.
SECTION 73. Section 37-37-21, Mississippi Code of 1972, is amended as follows:
37-37-21. When, as a result of any audits performed under the terms of this chapter, the State Auditor has reason to believe that any false or erroneous report or violation of law presents ample evidence therefor, he shall report the same to the Attorney General. The Attorney General shall thereupon institute suit in the name of the State of Mississippi and prosecute to a conclusion such actions as may be necessary to make recovery from any and all persons civilly liable, subject to the provisions of Sections 1 and 2 of this act. The Attorney General shall also refer the matter to the proper district attorney for the institution of any appropriate criminal proceedings. Any funds recovered by such suits shall be paid into the appropriate school district fund in accordance with the loss such fund or funds may have sustained.
SECTION 74. Section 37-41-25, Mississippi Code of 1972, is amended as follows:
37-41-25. Any superintendent of schools, member of the school board, superintendent, principal or carrier, or bus driver, who shall knowingly make any false report, list or record, or who shall knowingly make use of any false report, list or record concerning the number of school children being transported or entitled to be transported in any county or school district shall be guilty of a misdemeanor and upon conviction shall be punished by imprisonment in the county jail for a period not to exceed sixty (60) days, or by a fine of not less than One Hundred Dollars ($100.00) nor more than Three Hundred Dollars ($300.00), or by both such fine and imprisonment, in the discretion of the court. In addition, any such person shall be civilly liable for all amounts of public funds which are illegally, unlawfully or wrongfully expended or paid out by virtue of or pursuant to such false report, list or record, and upon conviction or adjudication of civil liability hereunder such person shall forfeit his license to teach for a period of three (3) years, if such person is the holder of such a license. Any suit to recover such funds illegally, unlawfully, or wrongfully expended or paid out may be brought in the name of the State of Mississippi by the Attorney General or the proper district attorney or county attorney, subject to the provisions of Sections 1 and 2 of this act. In the event such suit be brought against a person who is under bond, the sureties upon such bond shall likewise be liable for such amount illegally, unlawfully or wrongfully expended or paid out.
SECTION 75. Section 37-43-45, Mississippi Code of 1972, is amended as follows:
37-43-45. Any loss occasioned by the neglect, carelessness or failure of duty by the county superintendent or any principal or teacher in charge of any school, shall entitle the state to bring suit for the recovery of the amount of the loss or losses occasioned thereby.
Any
writ or suit of any nature instituted under the provisions of this chapter
shall be brought in the name of the State of Mississippi by the Attorney
General subject to the provisions of Sections 1 and 2 of this act. Any
money or * * *
monies recovered by such suit shall be placed to the credit of the State
Textbook Fund.
SECTION 76. Section 37-51-17, Mississippi Code of 1972, is amended as follows:
37-51-17. Each applicant, if an adult, or his parent or legal guardian in his behalf, if a minor, before being granted a loan shall enter into a contract with the State of Mississippi agreeing to the terms and conditions upon which the loan shall be made. Said contract shall include such terms and conditions as are necessary to carry out the full purpose and intent of this chapter. The form of said contract shall be prepared and approved by the Attorney General of this state, and said contract shall be signed by the executive secretary of the commission.
The commission is hereby vested with full and complete authority to sue in its own name any applicant for any balance due the state on any such contract. Such suit shall be filed and conducted by the Attorney General of the State of Mississippi, subject to the provisions of Sections 1 and 2 of this act, or by private counsel, which the commission is hereby authorized to employ for such purpose.
SECTION 77. Section 37-101-241, Mississippi Code of 1972, is amended as follows:
37-101-241. (1) There is hereby created the Commission on College Accreditation. Said commission shall be composed of the Executive Director of the Mississippi Community College Board, the Commissioner of Higher Education, or their designees, and three (3) additional members, one (1) of whom shall be selected by the foregoing two (2) members and who shall represent the private colleges within the state, and two (2) of whom shall be selected by the Mississippi Association of Colleges. The latter three (3) members shall each serve for a term of three (3) years.
(2) The commission shall meet and organize by electing from among its membership a chairman, a vice chairman and a secretary. The commission shall keep full and complete minutes and records of all its proceedings and actions.
(3) The commission shall have the power and authority, and it shall be its duty, to prepare an approved list of community, junior and senior colleges and universities or other entities which offer one or more postsecondary academic degrees and are domiciled, incorporated or otherwise located in the State of Mississippi. Postsecondary academic degrees include, but are not limited to, associate, bachelor, masters and doctorate degrees. The commission shall adopt standards which are in keeping with the best educational practices in accreditation and receive reports from the institutions seeking to be placed on the approved list.
(4) The above-described community, junior and senior colleges and universities or other entities must be approved annually by the commission in order to grant diplomas of graduation, degrees or offer instruction.
(5) The commission shall petition the chancery court of the county in which a person or agent offers one or more postsecondary academic degrees subject to the provisions of this chapter or advertises for the offering of such degrees without having first obtained approval by the commission, for an order enjoining such offering or advertising. The court may grant such injunctive relief upon a showing that the respondent named in the petition is offering or advertising one or more postsecondary academic degrees without having obtained prior approval of the commission. The Attorney General or the district attorney of the district, including the county in which such action is brought, shall, upon request of the commission, represent the commission in bringing any such action, subject to the provisions of Sections 1 and 2 of this act.
(6) The provisions of subsection (5) shall not apply to community, junior and senior colleges and universities with the main campus in Mississippi that were chartered, authorized or approved by the commission prior to July 1, 1988.
(7) The provisions of this section shall not apply to the proprietary schools and colleges subject to regulation under Section 75-60-1 et seq.
(8) The Commission on College Accreditation may promulgate rules and regulations and establish appropriate fees for the implementation of this section.
(9) The commission shall have the power and authority, and it shall be its duty, to execute site visits when deemed necessary by the commission. The members of the commission and commission-appointed evaluation teams shall receive reasonable traveling expenses and other authorized expenses incurred in the performance of commission duties, together with other expenses of the operation of the commission. The members of the Commission on College Accreditation shall serve without salary compensation but shall receive a per diem and mileage as authorized by law including time of going to and returning from site visits of said commission, together with actual travel and hotel expenses incident to the site visits of the commission, and in the discharge of duties prescribed by the commission.
SECTION 78. Section 37-101-279, Mississippi Code of 1972, is amended as follows:
37-101-279. (1) If a borrower defaults on an educational loan or scholarship, the Attorney General of the State of Mississippi shall bring suit against the defaulting party as soon as practicable, subject to the provisions of Sections 1 and 2 of this act.
(2) A suit against a defaulting party under this section may be brought in the county in which the defaulting person resides, in which the lender is located, or in any Hinds County court.
SECTION 79. Section 37-101-291, Mississippi Code of 1972, is amended as follows:
37-101-291. (1) In order to help alleviate the problem of the shortage of health care professionals at the state health institutions, there is established a program of paid educational leave for the study of such health care professions as defined in Section 37-101-285 and licensed practical nursing by any employee who works at a state health institution and who declares an intention to work in such respective health care occupation in the same state health institution in which the employee was working when granted educational leave, for a minimum period of time after graduation.
(2) The paid educational leave program shall be administered by the respective state health institutions.
(3) (a) Within the limits of the funds available to a state health institution for such purpose, the institution may grant paid educational leave to those applicants deemed qualified therefor, upon such terms and conditions as it may impose and as provided for in this section.
(b) In order to be eligible for paid educational leave, an applicant must:
(i) Be working at a state health institution at the time of application;
(ii) Attend any college or school approved and designated by the state health institution; and
(iii) Agree to work in a health care profession as defined in Section 37-101-285 or as a licensed practical nurse in the same state health institution for a period of time equivalent to the period of time for which the applicant receives paid educational leave compensation, calculated to the nearest whole month, but in no event less than two (2) years.
(c) (i) Before being granted paid educational leave, each applicant shall enter into a contract with the state health institution, which shall be deemed a contract with the State of Mississippi, agreeing to the terms and conditions upon which the paid educational leave shall be granted to him. The contract shall include such terms and provisions necessary to carry out the full purpose and intent of this section. The form of such contract shall be prepared and approved by the Attorney General of this state, and shall be signed by the executive director of the respective state health institution and the recipient. If the recipient is a minor, his minority disabilities shall be removed by a chancery court of competent jurisdiction before the contract is signed.
(ii) The state health institution shall have the authority to cancel any contract made between it and any recipient for paid educational leave upon such cause being deemed sufficient by the executive director of such institution.
(iii) The state health institution is vested with full and complete authority and power to sue in its own name any recipient for any balance due the state on any such uncompleted contract, which suit shall be filed and handled by the Attorney General of the state, subject to the provisions of Sections 1 and 2 of this act. The state health institution may contract with a collection agency or banking institution, subject to approval by the Attorney General, for collection of any balance due the state from any recipient. The State of Mississippi, agencies of the state and the state health institution and its employees are immune from any suit brought in law or equity for actions taken by the collection agency or banking institution incidental to or arising from their performance under the contract. The state health institution, collection agency and banking institution may negotiate for the payment of a sum that is less than full payment in order to satisfy any balance the recipient owes the state, subject to approval by the facility director of the sponsoring facility within the state health institution.
(iv) Failure to meet the terms of an educational loan contract shall be grounds for revocation of the professional license which was earned through the paid educational leave compensation granted under this section.
(v) A finding by the sponsoring agency of a default by the recipient shall be a finding of unprofessional conduct and therefore, a basis for the revocation of the professional license which was obtained through the educational leave program. The finding also will be grounds for revocation of any license, as defined by Section 93-11-153.
(vi) Notice of pending default status shall be mailed to the recipient at the last known address by the sponsoring agency.
(vii) The sponsoring agency shall conduct a hearing of pending default status, make a final determination, and issue an Order of Default, if appropriate.
(viii) Recipients may appear either personally or by counsel, or both, and produce and cross-examine witnesses or evidence in the recipient's behalf. The procedure of the hearing shall not be bound by the Mississippi Rules of Civil Procedure and Evidence.
(ix) If a recipient is found to be in default, a copy of an Order of Default shall be forwarded to the appropriate licensing agency.
(x) Appeals from a finding of default by the sponsoring agency shall be to the Circuit Court of Hinds County. Actions taken by a licensing entity in revoking a license when required by this section are not actions from which an appeal may be taken under the general licensing and disciplinary provisions applicable to the licensing agency.
(xi) Rules and regulations governing hearing and other applicable matters shall be promulgated by the sponsoring agency.
(xii) A license which has been revoked pursuant to this statute shall be reinstated upon a showing of proof that the recipient is no longer in default.
(xiii) A finding by the sponsoring facility of educational leave default is a disciplinary action, not a collection action, and therefore shall not be affected by the recipient declaring bankruptcy.
(4) (a) Any recipient who is granted paid educational leave by a state health institution shall be compensated by the institution during the time the recipient is in school, at the rate of pay received by a nurse's aide employed at the respective state health institution. All educational leave compensation received by the recipient while in school shall be considered earned conditioned upon the fulfillment of the terms and obligations of the educational leave contract and this section. However, no recipient of full-time educational leave shall accrue personal or major medical leave while the recipient is on paid educational leave. Recipients of paid educational leave shall be responsible for their individual costs of tuition and books.
(b) Paid educational leave shall be granted only upon the following conditions:
(i) The recipient shall fulfill his or her obligation under the contract with the State of Mississippi by working as a professional in a health care profession defined in Section 37-101-285 or as a licensed practical nurse in a state health institution; a recipient sponsored by a health institution under the supervision of the Mississippi Department of Mental Health may fulfill his or her obligation under the contract with the State of Mississippi at another health institution under the supervision of the Mississippi Department of Mental Health with prior written approval of the Director of the Department of Mental Health institution with which he or she originally contracted for educational leave. The total compensation that the recipient was paid while on educational leave shall be considered as unconditionally earned on an annual pro rata basis for each year of service rendered under the educational leave contract as a health care professional in his respective state health institution.
(ii) If the recipient does not work as a professional in a health care profession as defined in Section 37-101-285 or as a licensed practical nurse in his respective state health institution for the period required under subsection (3)(b)(iii) of this section, the recipient shall be liable for repayment on demand of the remaining portion of the compensation that the recipient was paid while on paid educational leave which has not been unconditionally earned, with interest accruing at ten percent (10%) per annum from the recipient's date of graduation or the date that the recipient last worked at that state health institution, whichever is the later date. In addition, there shall be included in any contract for paid educational leave a provision for liquidated damages equal to Five Thousand Dollars ($5,000.00) which may be reduced on a pro rata basis for each year served under such contract.
(iii) If any recipient fails or withdraws from school at any time before completing his or her health care training, the recipient shall be liable for repayment on demand of the amount of the total compensation that the recipient was paid while on paid educational leave, with interest accruing at ten percent (10%) per annum from the date the recipient failed or withdrew from school. However, the recipient shall not be liable for liquidated damages, and if the recipient returns to work in the same position held in the same state health institution prior to accepting educational leave, the recipient shall not be liable for payment of any interest on the amount owed.
(iv) The issuance and renewal of the professional license required to work in a health care profession as defined in Section 37-101-285 for which the educational leave was granted shall be contingent upon the repayment of the total compensation that the recipient received while on paid educational leave. No license shall be granted until a contract for repayment is executed. No license shall be renewed without proof of an existing contract which is not in default. Failure to meet the terms of an educational loan contract shall be grounds for revocation of the professional license which was earned through the paid educational leave compensation granted under this section. Any person who receives any amount of paid educational leave compensation while in school and subsequently receives a professional license shall be deemed to have earned the professional license through paid educational leave.
(v) The obligations of educational leave recipients under contracts entered into before July 1, 2002, shall remain unchanged. However, state health institutions may use the collection or license revocation provisions of this section to collect money owed under all educational leave contracts, regardless of when those contracts were executed.
SECTION 80. Section 37-101-292, Mississippi Code of 1972, is amended as follows:
37-101-292. (1) Within the limits of the funds available to the Mississippi Transportation Commission for such purpose, the Executive Director of the Mississippi Department of Transportation may pay a stipend to contractual services employees for educational expenses such as tuition, books and related fees to pursue junior or senior undergraduate level year coursework toward a bachelor's degree in civil engineering or graduate level coursework toward a master's degree in civil engineering to those applicants deemed qualified. It is the intent of the Legislature that such an educational program shall be used as a method of encouraging recruitment of well-qualified civil engineers for employment with the Mississippi Department of Transportation.
(2) (a) In order to be eligible for this program an undergraduate participant must:
(i) Have successfully obtained a minimum of fifty-eight (58) semester hours toward a bachelor of science in civil engineering from a state institution of higher learning that has been fully accredited by the Accreditation Board of Engineering and Technology;
(ii) Have achieved a minimum grade point average of 2.75 on a 4.0 scale on the previously obtained semester hours toward a bachelor of science in civil engineering; and
(iii) Agree to work as a civil engineer at the Mississippi Department of Transportation for a period of time equivalent to the period of time for which the applicant receives a stipend for educational expenses calculated to the nearest whole month.
(b) In order to be eligible for this program a graduate participant must:
(i) Have obtained a bachelor of science in civil engineering from a state institution of higher learning that has been fully accredited by the Accreditation Board of Engineering and Technology;
(ii) Have met the regular admission standards and been accepted into a master of science in civil engineering program at a state institution of higher learning that has been fully accredited by the Accreditation Board of Engineering and Technology;
(iii) Have submitted a proposed graduate program thesis project for review by the Department of Transportation; and
(iv) Agree to work as a civil engineer at the Mississippi Department of Transportation for a period of time equivalent to the period of time for which the applicant receives a stipend for educational expenses calculated to the nearest whole month.
(3) (a) Each participant shall enter into a contract with the Mississippi Transportation Commission, which shall be deemed a contract with the State of Mississippi, agreeing to the terms and conditions upon which the stipend shall be granted to him. The contract shall include such terms and provisions necessary to carry out the full purpose and intent of this section. The form of such contract shall be prepared and approved by the Attorney General of this state, and shall be signed by the Executive Director of the Mississippi Department of Transportation and the recipient. If the recipient is a minor, his minority disabilities shall be removed by a chancery court of competent jurisdiction before the contract is signed.
(b) The Mississippi Transportation Commission may cancel any contract made between it and any participant upon such cause being deemed sufficient by the Executive Director.
(c) The Mississippi Transportation Commission is vested with full and complete authority and power to sue in its own name any recipient for any balance due the state on any such uncompleted contract, which suit shall be filed and handled by the Attorney General of the state, subject to the provisions of Sections 1 and 2 of this act. The Mississippi Transportation Commission may contract with a collection agency or banking institution, subject to approval by the Attorney General, for collection of any balance due the state from any recipient. The State of Mississippi, the Mississippi Transportation Commission and the Mississippi Department of Transportation and its employees are immune from any suit brought in law or equity for actions taken by the collection agency or banking institution incidental to or arising from their performance under the contract. The Mississippi Transportation Commission may negotiate for the payment of a sum that is less than full payment in order to satisfy any balance the recipient owes the state, if necessary or advisable.
(d) Notice of pending default status shall be mailed to the recipient at the last known address prior to commencing a lawsuit.
(e) The sponsoring agency shall conduct a hearing of pending default status, make a final determination, and issue an Order of Default, if appropriate.
(f) Recipients may appear either personally or by counsel, or both, and produce and cross-examine witnesses or evidence in the recipient's behalf. The procedure of the hearing shall not be bound by the Mississippi Rules of Civil Procedure and Evidence.
(g) Appeals from a finding of default by the sponsoring agency shall be to the Circuit Court of Hinds County.
(h) Rules and regulations governing this program and other applicable matters may be promulgated by the sponsoring agency.
SECTION 81. Section 37-101-293, Mississippi Code of 1972, is amended as follows:
37-101-293. (1) Within the limits of the funds available to any state agency for such purpose, the administrative head of such state agency may grant paid educational leave on a part-time or full-time basis and reimburse employees for educational expenses such as tuition, books and related fees to pursue undergraduate or graduate level education to those applicants deemed qualified.
It is the intent of the Legislature that such educational leave program shall be used as an incentive for employees to develop job-related skills and to develop employees for higher-level professional and management positions.
(2) In order to be eligible for paid educational leave, reimbursement for educational expenses or both, an applicant must:
(a) Be working at a state agency for at least three (3) years at the time of application or be working at a state agency at the time of application for part-time graduate level education in a particular profession deemed by the administrative head of the state agency to meet a critical need within the state agency;
(b) Attend any college or school located in the State of Mississippi and approved by the administrative head of such agency, unless such course of study is not available at a Mississippi college or school, in which case the applicant may attend an out-of-state college or school;
(c) Agree to work as an employee in the same state agency for at least three (3) full years after completion of the course of study or, in the case of employees on educational leave on a part-time basis or receiving reimbursement for educational expenses only, to work for a time prorated based upon the total amount of expenses, including leave, paid for by the agency.
(3) (a) Before being granted paid educational leave, or being approved for reimbursement of educational expense or both, each applicant shall enter into a contract with the state agency, which shall be deemed a contract with the State of Mississippi, agreeing to the terms and conditions upon which the paid educational leave will be granted to him. The contract shall include such terms and provisions necessary to implement the purpose and intent of this section. The form of such contract shall be prepared by the Attorney General of this state and approved by the State Personnel Board, and shall be signed by the administrative head of the state agency and signed by the recipient. If the recipient is a minor, his minority disabilities shall be removed by a chancery court of competent jurisdiction before the contract is signed.
(b) Educational expenses for tuition, books and associated fees shall be reimbursed to the employee only after the employee has submitted documentation that the approved course has been successfully completed.
(c) If the recipient does not work as an employee in that state agency for the period of employment specified in the contract, the recipient shall be liable for repayment on demand of the remaining portion of the compensation that he or she was paid while on paid educational leave and educational expenses paid, with interest accruing at ten percent (10%) per annum from the recipient's date of graduation, or the date that the recipient last worked at that state agency, whichever is the later date. In addition, there shall be included in any contract for paid educational leave a provision for liquidated damages equal to Two Thousand Dollars ($2,000.00) per year for each year remaining to be served under such contract.
(d) If any recipient fails or withdraws from school at any time before completing his or her education, the recipient shall be liable for repayment on demand of the amount of the total compensation that he or she was paid while on paid educational leave, with interest accruing at ten percent (10%) per annum from the date the recipient failed or withdrew from school. However, if the recipient remains or returns to work in the same position he or she held in the same state agency prior to accepting educational leave, he or she shall not be liable for payment of any interest on the amount owed.
(e) The state agency shall have the authority to cancel any contract made between it and any recipient for paid educational leave or educational expenses or both upon such cause being deemed sufficient by the administrative head of the agency.
(f) The state agency is vested with full and complete authority and power to sue in its own name any recipient for any balance due the state on any such uncompleted contract, which suit shall be conducted and handled by the Attorney General of the state, subject to the provisions of Sections 1 and 2 of this act.
(g) Persons who default on contracts entered into under this section shall have the default determined and lose their professional health care licenses under the procedures provided in Section 37-101-291.
(4) At the discretion of the administrative head of the state agency, any recipient who is granted paid educational leave by the state agency, including nurses, shall be compensated by such agency as prescribed by the State Personnel Board during the time he or she is in school. For employees who are on educational leave on a full-time basis, the State Personnel Board shall establish a maximum salary amount at which any employee may be paid full compensation while on educational leave and shall establish a deduction ratio or reduced percentage rate of compensation to be paid to all employees compensated at a salary level above such maximum salary amount. No recipient of full-time educational leave shall accrue personal or major medical leave while he or she is on paid educational leave.
(5) Each state agency granting paid educational leave to employees or reimbursing educational expenses or both shall file an annual report with the Legislature which shall detail for each recipient of paid educational leave the position of the employee, the cost of the educational assistance and the degree program and school attended.
(6) Within the limits of funds available to the Mississippi Department of Mental Health, the Executive Director of the Department of Mental Health may grant educational leave to medical residents of the University of Mississippi and pay a stipend in an amount not to exceed the salary of a medical resident. In order to be eligible for paid educational leave under this subsection, the applicant must be approved by the Department of Mental Health Educational Leave Committee and meet all obligations established under agreements between the Department of Mental Health and the University of Mississippi and regulations promulgated by the Board of Mental Health. The recipient shall fulfill his or her obligation under this program on an annual pro rata basis for each year on paid education leave.
SECTION 82. Section 37-135-31, Mississippi Code of 1972, is brought forward as follows:
37-135-31.
Interstate Compact on Educational
Opportunity for Military Children
ARTICLE I
PURPOSE
Section 1. It is the purpose of this compact to remove barriers to educational success imposed on children of military families because of frequent moves and deployment of their parents by:
A. Facilitating the timely enrollment of children of military families and ensuring that they are not placed at a disadvantage due to difficulty in the transfer of education records from the previous school district(s) or variations in entrance/age requirements.
B. Facilitating the student placement process through which children of military families are not disadvantaged by variations in attendance requirements, scheduling, sequencing, grading, course content or assessment.
C. Facilitating the qualification and eligibility for enrollment, educational programs, and participation in extracurricular academic, athletic, and social activities.
D. Facilitating the on-time graduation of children of military families.
E. Providing for the promulgation and enforcement of administrative rules implementing the provisions of this compact.
F. Providing for the uniform collection and sharing of information between and among member states, schools, and military families under this compact.
G. Promoting coordination between this compact and other compacts affecting military children.
H. Promoting flexibility and cooperation between the educational system, parents, and the student in order to achieve educational success for the student.
ARTICLE II
DEFINITIONS
Section 2. As used in this compact, unless the context clearly requires a different construction:
A. "Active duty" means full-time duty status in the active uniformed service of the United States, including members of the National Guard and Reserve on active duty orders pursuant to 10 USC, Sections 1209 and 1211.
B. "Children of military families" means school-aged children, enrolled in Kindergarten through 12th Grade, in the household of an active duty member.
C. "Compact commissioner" means the voting representative of each compacting state appointed pursuant to Article VIII of this compact.
D. "Deployment" means the period one (1) month prior to the service members' departure from their home station on military orders through six (6) months after return to their home station.
E. "Educational records" means those official records, files, and data directly related to a student and maintained by the school or local education agency, including, but not limited to, records encompassing all the material kept in the student's cumulative folder such as general identifying data, records of attendance and of academic work completed, records of achievement and results of evaluative tests, health data, disciplinary status, test protocols, and individualized education programs.
F. "Extracurricular activities" means a voluntary activity sponsored by the school or local education agency or an organization sanctioned by the local education agency. Extracurricular activities include, but are not limited to, preparation for and involvement in public performances, contests, athletic competitions, demonstrations, displays and club activities.
G. "Interstate Commission on Educational Opportunity for Military Children" means the commission that is created under Article IX of this compact, which is generally referred to as the Interstate Commission.
H. "Local education agency" means a public authority legally constituted by the state as an administrative agency to provide control of and direction for Kindergarten through 12th Grade public educational institutions.
I. "Member state" means a state that has enacted this compact.
J. "Military installation" means a base, camp, post, station, yard, center, homeport facility for any ship, or other activity under the jurisdiction of the Department of Defense, including any leased facility, which is located within any of the several states, the District of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, the Northern Marianas Islands, and any other U.S. Territory. Such term does not include any facility used primarily for civil works, river and harbor projects, or flood control projects.
K. "Nonmember state" means a state that has not enacted this compact.
L. "Receiving state" means the state to which a child of a military family is sent, brought, or caused to be sent or brought.
M. "Rule" means a written statement by the Interstate Commission promulgated pursuant to Article XII of this compact that is of general applicability; implements, interprets, or prescribes a policy or provision of the compact, or an organizational, procedural, or practice requirement of the Interstate Commission and has the force and effect of statutory law in a member state; and includes the amendment, repeal, or suspension of an existing rule.
N. "Sending state" means the state from which a child of a military family is sent, brought, or caused to be sent or brought.
O. "State" means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, the Northern Marianas Islands, and any other U.S. Territory.
P. "Student" means the child of a military family for whom the local education agency receives public funding and who is formally enrolled in Kindergarten through 12th Grade.
Q. "Transition" means: (i) the formal and physical process of transferring from school to school or (ii) the period of time in which a student moves from one school in the sending state to another school in the receiving state.
R. "Uniformed services" means the Army, Navy, Air Force, Marine Corps, Coast Guard, as well as the Commissioned Corps of the National Oceanic and Atmospheric Administration, and Public Health Services.
S. "Veteran" means a person who served in the active military, naval, or air service and who was discharged or released therefrom under conditions other than dishonorable.
ARTICLE III
APPLICABILITY
Section 3. A. Except as otherwise provided in subsection B, this compact shall apply to the children of:
1. Active duty members of the uniformed services as defined in this compact, including members of the National Guard and Reserve on active duty orders pursuant to 10 USC, Sections 1209 and 1211;
2. Members or veterans of the uniformed services who are severely injured and medically discharged or retired for a period of one (1) year after medical discharge or retirement; and
3. Members of the uniformed services who die on active duty or as a result of injuries sustained on active duty for a period of one (1) year after death.
B. The provisions of this interstate compact shall only apply to local education agencies as defined in this compact.
C. The provisions of this interstate compact shall not apply to the children of:
1. Inactive members of the National Guard and Military Reserves;
2. Members of the uniformed services now retired, except as provided in subsection A;
3. Veterans of the uniformed services, except as provided in subsection A; and
4. Other U.S. Department of Defense personnel and other federal agency civilian and contract employees not defined as active duty members of the uniformed services.
ARTICLE IV
EDUCATIONAL RECORDS AND ENROLLMENT
Section 4. A. Unofficial or "hand-carried" education records. In the event that official education records cannot be released to the parents for the purpose of transfer, the custodian of the records in the sending state shall prepare and furnish to the parent a complete set of unofficial educational records containing uniform information as determined by the Interstate Commission. Upon receipt of the unofficial education records by a school in the receiving state, the school shall enroll and appropriately place the student based on the information provided in the unofficial records pending validation by the official records, as quickly as possible.
B. Official education records/transcripts. Simultaneous with the enrollment and conditional placement of the student, the school in the receiving state shall request the student's official education records from the school in the sending state. Upon receipt of this request, the school in the sending state will process and furnish the official education records to the school in the receiving state within ten (10) days or within such time as is reasonably determined under the rules promulgated by the Interstate Commission.
C. Immunizations. Compacting states shall give thirty (30) days from the date of enrollment or within such time as is reasonably determined under the rules promulgated by the Interstate Commission for students to obtain any immunization(s) required by the receiving state. For a series of immunizations, initial vaccinations must be obtained within thirty (30) days or within such time as is reasonably determined under the rules promulgated by the Interstate Commission.
D. Kindergarten and First Grade entrance age. Students shall be allowed to continue their enrollment at the grade level in the receiving state commensurate with their grade level (including kindergarten) from a local education agency in the sending state at the time of transition, regardless of age. A student who has satisfactorily completed the prerequisite grade level in the local education agency in the sending state shall be eligible for enrollment in the next highest grade level in the receiving state, regardless of age. A student transferring after the start of the school year in the receiving state shall enter the school in the receiving state on their validated level from an accredited school in the sending state.
ARTICLE V
PLACEMENT AND ATTENDANCE
Section 5. A. Course placement. When the student transfers before or during the school year, the receiving state school shall initially honor placement of the student in educational courses based on the student's enrollment in the sending state school and/or educational assessments conducted at the school in the sending state if the courses are offered. Course placement includes, but is not limited to, honors, International Baccalaureate, advanced placement, vocational, technical, and career pathway courses. Continuing the student's academic program from the previous school and promoting placement in academically and career challenging courses should be paramount when considering placement. This does not preclude the school in the receiving state from performing subsequent evaluations to ensure appropriate placement and continued enrollment of the student in the course(s).
B. Educational program placement. The receiving state school shall initially honor placement of the student in educational programs based on current educational assessments conducted at the school in the sending state or participation/placement in like programs in the sending state. Such programs include, but are not limited to, (i) gifted and talented programs, and (ii) English as a second language (ESL). This does not preclude the school in the receiving state from performing subsequent evaluations to ensure appropriate placement of the student.
C. Special education services. In compliance with the federal requirements of the Individuals with Disabilities Education Act (IDEA), 20 USC, Section 1400 et seq., the receiving state shall initially provide comparable services to a student with disabilities based on his/her current Individualized Education Program (IEP) and in compliance with the requirements of Section 504 of the Rehabilitation Act, 29 USC, Section 794, and with Title II of the Americans with Disabilities Act, 42 USC, Sections 12131-12165, and the receiving state shall make reasonable accommodations and modifications to address the needs of incoming students with disabilities, subject to an existing 504 or Title II Plan, to provide the student with equal access to education. This does not preclude the school in the receiving state from performing subsequent evaluations to ensure appropriate placement of the student.
D. Placement flexibility. Local education agency administrative officials shall have flexibility in waiving course/program prerequisites or other preconditions for placement in courses/programs offered under the jurisdiction of the local education agency.
E. Absence as related to deployment activities. A student whose parent or legal guardian is an active duty member of the uniformed services, as defined by the compact, and has been called to duty for, is on leave from, or has immediately returned from deployment to a combat zone or combat support posting, shall be granted additional excused absences at the discretion of the local education agency superintendent to visit with his or her parent or legal guardian relative to such leave or deployment of the parent or guardian.
ARTICLE VI
ELIGIBILITY
Section 6. A. Eligibility for enrollment.
1. Special power of attorney, relative to the guardianship of a child of a military family, and executed under applicable law, shall be sufficient for the purposes of enrollment and all other actions requiring parental participation and consent;
2. A local education agency shall be prohibited from charging local tuition to a transitioning military child placed in the care of a noncustodial parent or other person standing in loco parentis who lives in a jurisdiction other than that of the custodial parent; and
3. A transitioning military child, placed in the care of a noncustodial parent or other person standing in loco parentis who lives in a jurisdiction other than that of the custodial parent, may continue to attend the school in which he/she was enrolled while residing with the custodial parent.
B. Eligibility for extracurricular participation. State and local education agencies shall facilitate the opportunity for transitioning military children's inclusion in extracurricular activities, regardless of application deadlines, to the extent they are otherwise qualified.
ARTICLE VII
GRADUATION
Section 7. In order to facilitate the on-time graduation of children of military families, state and local education agencies shall incorporate the following procedures:
A. Waiver requirements. Local education agency administrative officials shall waive specific courses required for graduation if similar coursework has been satisfactorily completed in another local education agency or shall provide reasonable justification for denial. Should a waiver not be granted to a student who would qualify to graduate from the sending school, the local education agency shall provide an alternative means of acquiring required coursework so that graduation may occur on time.
B. Exit exams. States shall accept: (i) exit or end-of-course exams required for graduation from the sending state, (ii) national norm-referenced achievement tests, or (iii) alternative testing, in lieu of testing requirements for graduation in the receiving state. In the event the above alternatives cannot be accommodated by the receiving state for a student transferring in his or her senior year, then the provisions of Article VII, subsection C shall apply.
C. Transfers during senior year. Should a military student transferring at the beginning or during his or her senior year be ineligible to graduate from the receiving local education agency after all alternatives have been considered, the sending and receiving local education agencies shall ensure the receipt of a diploma from the sending local education agency, if the student meets the graduation requirements of the sending local education agency. In the event that one of the states in question is not a member of this compact, the member state shall use best efforts to facilitate the on-time graduation of the student in accordance with subsections A and B of this Article.
ARTICLE VIII
STATE COORDINATION
Section 8. A. Each member state shall, through the creation of a State Council or use of an existing body or board, provide for the coordination among its agencies of government, local education agencies, and military installations concerning the state's participation in, and compliance with, this compact and Interstate Commission activities. While each member state may determine the membership of its own State Council, its membership must include at least: (i) the state superintendent of education, (ii) the superintendent of a school district with a high concentration of military children, (iii) one (1) representative from a military installation, (iv) one (1) representative each from the legislative and executive branches of government, and other offices and stakeholder groups the State Council deems appropriate. A member state that does not have a school district deemed to contain a high concentration of military children may appoint a superintendent from another school district to represent local education agencies on the State Council.
B. The State Council of each member state shall appoint or designate a military family education liaison to assist military families and the state in facilitating the implementation of this compact.
C. The Governor of each member state shall appoint or designate a compact commissioner responsible for the administration and management of the state's participation in the compact and who is empowered to establish statewide policy related to matters governed by this compact.
D. The compact commissioner and the military family education liaison designated herein shall be ex officio members of the State Council, unless either is already a full voting member of the State Council.
ARTICLE IX
INTERSTATE COMMISSION ON EDUCATIONAL OPPORTUNITY
FOR MILITARY CHILDREN
Section 9. The member states hereby create the Interstate Commission on Educational Opportunity for Military Children. The activities of the Interstate Commission are the formation of public policy and are a discretionary state function. The Interstate Commission shall:
A. Be a body corporate and joint agency of the member states and shall have all the responsibilities, powers, and duties set forth herein and such additional powers as may be conferred upon it by a subsequent concurrent action of the respective Legislatures of the member states in accordance with the terms of this compact.
B. Consist of one (1) Interstate Commission voting representative from each member state who shall be that state's compact commissioner and who is empowered to establish statewide policy related to matters governed by this compact.
1. Each member state represented at a meeting of the Interstate Commission is entitled to one (1) vote;
2. A majority of the total member states shall constitute a quorum for the transaction of business, unless a larger quorum is required by the bylaws of the Interstate Commission;
3. A representative shall not delegate a vote to another member state. In the event the compact commissioner is unable to attend a meeting of the Interstate Commission, the Governor or State Council may delegate voting authority to another person from the state for a specified meeting; and
4. The bylaws may provide for meetings of the Interstate Commission to be conducted by telecommunication or electronic communication.
C. Consist of ex officio, nonvoting representatives who are members of interested organizations. Such ex officio members, as defined in the bylaws, may include, but not be limited to, members of the representative organizations of military family advocates, local education agency officials, parent and teacher groups, the U.S. Department of Defense, the Education Commission of the States, the Interstate Agreement on the Qualification of Educational Personnel, and other interstate compacts affecting the education of children of military members.
D. Meet at least once each calendar year. The chairperson may call additional meetings and, upon the request of a simple majority of the member states, shall call additional meetings.
E. Establish an executive committee, whose members shall include the officers of the Interstate Commission and such other members of the Interstate Commission as determined by the bylaws. Members of the executive committee shall serve a one-year term. Members of the executive committee shall be entitled to one (1) vote each. The executive committee shall have the power to act on behalf of the Interstate Commission, with the exception of rule-making, during periods when the Interstate Commission is not in session. The executive committee shall oversee the day-to-day activities of the administration of the compact, including enforcement and compliance with the provisions of the compact, its bylaws and rules, and other such duties as deemed necessary. The U.S. Department of Defense shall serve as an ex officio, nonvoting member of the executive committee.
F. Establish bylaws and rules that provide for conditions and procedures under which the Interstate Commission shall make its information and official records available to the public for inspection or copying. The Interstate Commission may exempt from disclosure information or official records to the extent they would adversely affect personal privacy rights or proprietary interests.
G. Public notice shall be given by the Interstate Commission of all meetings, and all meetings shall be open to the public, except as set forth in the rules or as otherwise provided in the compact. The Interstate Commission and its committees may close a meeting, or portion thereof, when it determines by two-thirds (2/3) vote that an open meeting would be likely to:
1. Relate solely to the Interstate Commission's internal personnel practices and procedures;
2. Disclose matters specifically exempted from disclosure by federal and state statute;
3. Disclose trade secrets or commercial or financial information that is privileged or confidential;
4. Involve accusing a person of a crime or formally censuring a person;
5. Disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;
6. Disclose investigative records compiled for law enforcement purposes; or
7. Specifically relate to the Interstate Commission's participation in a civil action or other legal proceeding.
H. For a meeting, or portion of a meeting, closed pursuant to the provisions of subsection G, the Interstate Commission's legal counsel or designee shall certify that the meeting may be closed and shall reference each relevant exemptible provision. The Interstate Commission shall keep minutes, which shall fully and clearly describe all matters discussed in a meeting and shall provide a full and accurate summary of actions taken, and the reasons therefor, including a description of the views expressed and the record of a roll call vote. All documents considered in connection with an action shall be identified in such minutes. All minutes and documents of a closed meeting shall remain under seal, subject to release by a majority vote of the Interstate Commission.
I. The Interstate Commission shall collect standardized data concerning the educational transition of the children of military families under this compact as directed through its rules, which shall specify the data to be collected, the means of collection and data exchange, and reporting requirements. Such methods of data collection, exchange, and reporting shall, insofar as is reasonably possible, conform to current technology and coordinate its information functions with the appropriate custodian of records as identified in the bylaws and rules.
J. The Interstate Commission shall create a process that permits military officials, education officials, and parents to inform the Interstate Commission if and when there are alleged violations of the compact or its rules or when issues subject to the jurisdiction of the compact or its rules are not addressed by the state or local education agency. This subsection shall not be construed to create a private right of action against the Interstate Commission or any member state.
ARTICLE X
POWERS AND DUTIES OF THE INTERSTATE COMMISSION
Section 10. The Interstate Commission shall have the following powers:
A. To provide for dispute resolution among member states.
B. To promulgate rules and take all necessary actions to effect the goals, purposes, and obligations as enumerated in this compact. The rules shall have the force and effect of statutory law and shall be binding in the compact states to the extent and in the manner provided in this compact.
C. To issue, upon request of a member state, advisory opinions concerning the meaning or interpretation of the interstate compact, its bylaws, rules, and actions.
D. To enforce compliance with the compact provisions, the rules promulgated by the Interstate Commission, and the bylaws, using all necessary and proper means, including, but not limited to, the use of judicial process.
E. To establish and maintain offices, which shall be located within one or more of the member states.
F. To purchase and maintain insurance and bonds.
G. To borrow, accept, hire, or contract for services of personnel.
H. To establish and appoint committees, including, but not limited to, an executive committee as required by Article IX, subsection E, which shall have the power to act on behalf of the Interstate Commission in carrying out its powers and duties hereunder.
I. To elect or appoint such officers, attorneys, employees, agents, or consultants, and to fix their compensation, define their duties, and determine their qualifications and to establish the Interstate Commission's personnel policies and programs relating to conflicts of interest, rates of compensation, and qualifications of personnel.
J. To accept any and all donations and grants of money, equipment, supplies, materials, and services and to receive, utilize, and dispose of them.
K. To lease, purchase, accept contributions or donations of, or otherwise to own, hold, improve, or use any property, real, personal, or mixed.
L. To sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose of any property, real, personal, or mixed.
M. To establish a budget and make expenditures.
N. To adopt a seal and bylaws governing the management and operation of the Interstate Commission.
O. To report annually to the Legislatures, Governors, judiciary, and state councils of the member states concerning the activities of the Interstate Commission during the preceding year. Such reports shall also include any recommendations that may have been adopted by the Interstate Commission.
P. To coordinate education, training, and public awareness regarding the compact, its implementation, and operation for officials and parents involved in such activity.
Q. To establish uniform standards for the reporting, collecting, and exchanging of data.
R. To maintain corporate books and records in accordance with the bylaws.
S. To perform such functions as may be necessary or appropriate to achieve the purposes of this compact.
T. To provide for the uniform collection and sharing of information between and among member states, schools, and military families under this compact.
ARTICLE XI
ORGANIZATION AND OPERATION OF THE INTERSTATE COMMISSION
Section 11. A. The Interstate Commission shall, by a majority of the members present and voting, within twelve (12) months after the first Interstate Commission meeting, adopt bylaws to govern its conduct as may be necessary or appropriate to carry out the purposes of the compact, including, but not limited to:
1. Establishing the fiscal year of the Interstate Commission;
2. Establishing an executive committee and such other committees as may be necessary;
3. Providing for the establishment of committees and for governing any general or specific delegation of authority or function of the Interstate Commission;
4. Providing reasonable procedures for calling and conducting meetings of the Interstate Commission and ensuring reasonable notice of each such meetings;
5. Establishing the titles and responsibilities of the officers and staff of the Interstate Commission;
6. Providing a mechanism for concluding the operations of the Interstate Commission and the return of surplus funds that may exist upon the termination of the compact after the payment and reserving all of its debts and obligations; and
7. Providing "start-up" rules for initial administration of the compact.
B. The Interstate Commission shall, by a majority of the members, elect annually from among its members a chairperson, a vice chairperson and a treasurer, each of whom shall have the authority and duties as may be specified in the bylaws. The chairperson or, in the chairperson's absence or disability, the vice chairperson shall preside at all meetings of the Interstate Commission. The officers so elected shall serve without compensation or remuneration from the Interstate Commission provided that, subject to the availability of budgeted funds, the officers shall be reimbursed for ordinary and necessary costs and expenses incurred by them in the performance of their responsibilities as officers of the Interstate Commission.
C. Executive Committee, officers, and personnel.
1. The executive committee shall have such authority and duties as may be set forth in the bylaws, including, but not limited to: (a) managing the affairs of the Interstate Commission in a manner consistent with the bylaws and purposes of the Interstate Commission; (b) overseeing an organizational structure within and appropriate procedures for the Interstate Commission to provide for the creation of rules, operating procedures, and administrative and technical support functions; and (c) planning, implementing, and coordinating communications and activities with other state, federal, and local government organizations in order to advance the goals of the Interstate Commission.
2. The executive committee may, subject to the approval of the Interstate Commission, appoint or retain an executive director for such period, upon such terms and conditions, and for such compensation as the Interstate Commission may deem appropriate. The executive director shall serve as secretary to the Interstate Commission, but shall not be a member of the Interstate Commission. The executive director shall hire and supervise such other persons as may be authorized by the Interstate Commission.
D. The Interstate Commission's executive director and its employees shall be immune from suit and liability, either personally or in their official capacity, for a claim for damage to or loss of property or personal injury or other civil liability caused or arising out of or relating to an actual or alleged act, error, or omission that occurred, or that such person had a reasonable basis for believing occurred, within the scope of Interstate Commission employment, duties, or responsibilities, provided that such person shall not be protected from suit or liability for damage, loss, injury, or liability caused by the intentional or willful and wanton misconduct of such person.
1. The liability of the Interstate Commission's executive director and employees or the Interstate Commission representatives, acting within the scope of their employment or duties for acts, errors, or omissions occurring within such person's state, may not exceed the limits of liability set forth under the constitution and laws of that state for state officials, employees, and agents. The Interstate Commission is considered to be an instrumentality of the states for the purposes of any such action. Nothing in this subsection D shall be construed to protect such person from suit or liability for damage, loss, injury, or liability caused by the intentional or willful and wanton misconduct of such person.
2. The Interstate Commission shall defend the executive director and its employees and, subject to the approval of the Attorney General or other appropriate legal counsel of the member state represented by an Interstate Commission representative, shall defend such Interstate Commission representative in any civil action seeking to impose liability arising out of an actual or alleged act, error, or omission that occurred within the scope of Interstate Commission employment, duties, or responsibilities, or that the defendant had a reasonable basis for believing occurred within the scope of Interstate Commission employment, duties, or responsibilities provided that the actual or alleged act, error, or omission did not result from intentional or willful and wanton misconduct on the part of such person.
3. To the extent not covered by the state involved, member state, or the Interstate Commission, the representatives or employees of the Interstate Commission shall be held harmless in the amount of a settlement or judgment, including attorney's fees and costs, obtained against such persons arising out of an actual or alleged act, error, or omission that occurred within the scope of Interstate Commission employment, duties, or responsibilities, or that such persons had a reasonable basis for believing occurred within the scope of Interstate Commission employment, duties, or responsibilities, provided that the actual or alleged act, error, or omission did not result from intentional or willful and wanton misconduct on the part of such persons.
ARTICLE XII
RULE-MAKING FUNCTIONS OF THE INTERSTATE COMMISSION
Section 12. A. Rule-making authority. The Interstate Commission shall promulgate reasonable rules in order to effectively and efficiently achieve the purposes of this compact. Notwithstanding the foregoing, in the event the Interstate Commission exercises its rule-making authority in a manner that is beyond the scope of the purposes of this compact, or the powers granted hereunder, then such an action by the Interstate Commission shall be invalid and have no force or effect.
B. Rule-making procedure. Rules shall be made pursuant to a rule-making process that substantially conforms to the "Model State Administrative Procedure Act," of 1981 Act, Uniform Laws Annotated, Vol. 15, p. 1 (2000) as amended, as may be appropriate to the operations of the Interstate Commission.
C. Not later than thirty (30) days after a rule is promulgated, any person may file a petition for judicial review of the rule provided that the filing of such a petition shall not stay or otherwise prevent the rule from becoming effective unless the court finds that the petitioner has a substantial likelihood of success. The court shall give deference to the actions of the Interstate Commission consistent with applicable law and shall not find the rule to be unlawful if the rule represents a reasonable exercise of the Interstate Commission's authority.
D. If a majority of the Legislatures of the compacting states rejects a rule by enactment of a statute or resolution in the same manner used to adopt the compact, then such rule shall have no further force and effect in any compacting state.
ARTICLE XIII
OVERSIGHT, ENFORCEMENT, AND DISPUTE RESOLUTION
Section 13. A. Oversight.
1. The executive, legislative, and judicial branches of state government in each member state shall enforce this compact and shall take all actions necessary and appropriate to effectuate the compact's purposes and intent. The provisions of this compact and the rules promulgated hereunder shall have standing as statutory law;
2. All courts shall take judicial notice of the compact and the rules in any judicial or administrative proceeding in a member state pertaining to the subject matter of this compact which may affect the powers, responsibilities, or actions of the Interstate Commission; and
3. The Interstate Commission shall be entitled to receive all service of process in any such proceeding and shall have standing to intervene in the proceeding for all purposes. Failure to provide service of process to the Interstate Commission shall render a judgment or order void as to the Interstate Commission, this compact, or promulgated rules.
B. Default, technical assistance, suspension, and termination.
If the Interstate Commission determines that a member state has defaulted in the performance of its obligations or responsibilities under this compact, or the bylaws or promulgated rules, the Interstate Commission shall:
1. Provide written notice to the defaulting state and other member states of the nature of the default, the means of curing the default, and any action taken by the Interstate Commission. The Interstate Commission shall specify the conditions by which the defaulting state must cure its default;
2. Provide remedial training and specific technical assistance regarding the default;
3. If the defaulting state fails to cure the default, the defaulting state shall be terminated from the compact upon an affirmative vote of a majority of the member states, and all rights, privileges, and benefits conferred by this compact shall be terminated from the effective date of termination. A cure of the default does not relieve the offending state of obligations or liabilities incurred during the period of the default;
4. Suspension or termination of membership in the compact shall be imposed only after all other means of securing compliance have been exhausted. Notice of intent to suspend or terminate shall be given by the Interstate Commission to the Governor, the majority and minority leaders of the defaulting state's Legislature, and each of the member states;
5. The state which has been suspended or terminated is responsible for all assessments, obligations, and liabilities incurred through the effective date of suspension or termination, including obligations the performance of which extends beyond the effective date of suspension or termination;
6. The Interstate Commission shall not bear any costs relating to any state that has been found to be in default or which has been suspended or terminated from the compact, unless otherwise mutually agreed upon in writing between the Interstate Commission and the defaulting state; and
7. The defaulting state may appeal the action of the Interstate Commission by petitioning the United States District Court for the District of Columbia or the federal district where the Interstate Commission has its principal offices. The prevailing party shall be awarded all costs of such litigation including reasonable attorney's fees.
C. Dispute resolution.
1. The Interstate Commission shall attempt, upon the request of a member state, to resolve disputes that are subject to the compact and that may arise among member states and between member and nonmember states.
2. The Interstate Commission shall promulgate a rule providing for both mediation and binding dispute resolution for disputes as appropriate.
D. Enforcement.
1. The Interstate Commission, in the reasonable exercise of its discretion, shall enforce the provisions and rules of this compact.
2. The Interstate Commission may by majority vote of the members initiate legal action in the United States District Court for the District of Columbia or, at the discretion of the Interstate Commission, in the federal district where the Interstate Commission has its principal offices to enforce compliance with the provisions of the compact, its promulgated rules and bylaws against a member state in default. The relief sought may include both injunctive relief and damages. In the event judicial enforcement is necessary, the prevailing party shall be awarded all costs of such litigation including reasonable attorney's fees.
3. The remedies herein shall not be the exclusive remedies of the Interstate Commission. The Interstate Commission may avail itself of any other remedies available under state law or the regulation of a profession.
ARTICLE XIV
FINANCING OF THE INTERSTATE COMMISSION
Section 14. A. The Interstate Commission shall pay or provide for the payment of the reasonable expenses of its establishment, organization, and ongoing activities.
B. The Interstate Commission may levy on and collect an annual assessment from each member state to cover the cost of the operations and activities of the Interstate Commission and its staff, which must be in a total amount sufficient to cover the Interstate Commission's annual budget as approved each year. The aggregate annual assessment amount shall be allocated based upon a formula to be determined by the Interstate Commission, which shall promulgate a rule binding upon all member states.
C. The Interstate Commission shall not incur obligations of any kind prior to securing the funds adequate to meet the same nor shall the Interstate Commission pledge the credit of any of the member states, except by and with the authority of the member state.
D. The Interstate Commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the Interstate Commission shall be subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the Interstate Commission shall be audited yearly by a certified or licensed public accountant and the report of the audit shall be included in and become part of the annual report of the Interstate Commission.
ARTICLE XV
MEMBER STATES, EFFECTIVE DATE, AND AMENDMENT
Section 15. A. Any state is eligible to become a member state.
B. The compact shall become effective and binding upon legislative enactment of the compact into law by no less than ten (10) of the states. The effective date shall be no earlier than December 1, 2008. Thereafter it shall become effective and binding as to any other member state upon enactment of the compact into law by that state. The Governors of nonmember states or their designees shall be invited to participate in the activities of the Interstate Commission on a nonvoting basis prior to adoption of the compact by all states.
C. The Interstate Commission may propose amendments to the compact for enactment by the member states. No amendment shall become effective and binding upon the Interstate Commission and the member states unless and until it is enacted into law by unanimous consent of the member states.
ARTICLE XVI
WITHDRAWAL AND DISSOLUTION
Section 16. A. Withdrawal.
1. Once effective, the compact shall continue in force and remain binding upon each and every member state, provided that a member state may withdraw from the compact specifically by repealing the statute which enacted the compact into law.
2. Withdrawal from this compact shall be by the enactment of a statute repealing the same, but shall not take effect until one (1) year after the effective date of such statute and until written notice of the withdrawal has been given by the withdrawing state to the Governor of each other member jurisdiction.
3. The withdrawing state shall immediately notify the chairperson of the Interstate Commission in writing upon the introduction of legislation repealing this compact in the withdrawing state. The Interstate Commission shall notify the other member states of the withdrawing state's intent to withdraw within sixty (60) days of its receipt thereof.
4. The withdrawing state is responsible for all assessments, obligations, and liabilities incurred through the effective date of withdrawal, including obligations the performance of which extends beyond the effective date of withdrawal.
5. Reinstatement following withdrawal of a member state shall occur upon the withdrawing state reenacting the compact or upon such later date as determined by the Interstate Commission.
B. Dissolution of compact.
1. This compact shall dissolve effective upon the date of the withdrawal or default of the member state that reduces the membership in the compact to one (1) member state.
2. Upon the dissolution of this compact, the compact becomes null and void and shall be of no further force or effect and the business and affairs of the Interstate Commission shall be concluded and surplus funds shall be distributed in accordance with the bylaws.
ARTICLE XVII
SEVERABILITY AND CONSTRUCTION
Section 17. A. The provisions of this compact shall be severable and if any phrase, clause, sentence, or provision is deemed unenforceable, the remaining provisions of the compact shall be enforceable.
B. The provisions of this compact shall be liberally construed to effectuate its purposes.
C. Nothing in this compact shall be construed to prohibit the applicability of other interstate compacts to which the states are members.
ARTICLE XVIII
BINDING EFFECT OF COMPACT AND OTHER LAWS
Section 18. A. Other laws.
1. Nothing herein prevents the enforcement of any other law of a member state that is not inconsistent with this compact.
2. All member states' laws conflicting with this compact are superseded to the extent of the conflict.
B. Binding effect of the compact.
1. All lawful actions of the Interstate Commission, including all rules and bylaws promulgated by the Interstate Commission, are binding upon the member states.
2. All agreements between the Interstate Commission and the member states are binding in accordance with their terms.
3. In the event any provision of this compact exceeds the constitutional limits imposed on the Legislature of any member state, such provision shall be ineffective to the extent of the conflict with the constitutional provision in question in that member state.
SECTION 83. Section 37-151-107, Mississippi Code of 1972, is amended as follows:
37-151-107. Any superintendent of education, member of the local school board of any school district, superintendent, principal, teacher, carrier, bus driver or member or employee of the State Department of Education or State Board of Education, or any other person, who shall willfully violate any of the provisions of this chapter, or who shall willfully make any false report, list or record, or who shall willfully make use of any false report, list or record, concerning the number of school children in average daily attendance or the number of children being transported or entitled to be transported in any county or school district, shall be guilty of a misdemeanor and upon conviction shall be punished by imprisonment in the county jail for a period not to exceed sixty (60) days or by a fine of not less than One Hundred Dollars ($100.00), nor more than Three Hundred Dollars ($300.00), or by both such fine and imprisonment, in the discretion of the court. In addition, any such person shall be civilly liable for all amounts of public funds which are illegally, unlawfully or wrongfully expended or paid out by virtue of or pursuant to such false report, list or record, and upon conviction or adjudication of civil liability hereunder, such person shall forfeit his license to teach for a period of three (3) years, if such person is the holder of such a license. Any suit to recover such funds illegally, unlawfully or wrongfully expended or paid out may be brought in the name of the State of Mississippi by the Attorney General, subject to the provisions of Sections 1 and 2 of this act, or the proper district attorney or county attorney, and, in the event such suit be brought against a person who is under bond, the sureties upon such bond shall likewise be liable for such amount illegally, unlawfully or wrongfully expended or paid out.
SECTION 84. Section 39-3-201, Mississippi Code of 1972, is brought forward as follows:
39-3-201. The Interstate Library Compact is hereby enacted into law and entered into by this state with all states legally joining therein in the form substantially as follows:
INTERSTATE LIBRARY COMPACT
Article I. Policy and Purpose
Because the desire for the services provided by libraries transcends governmental boundaries and can most effectively be satisfied by giving such services to communities and people regardless of jurisdictional lines, it is the policy of the states party to this compact to cooperate and share their responsibilities; to authorize cooperation and sharing with respect to those types of library facilities and services which can be more economically or efficiently developed and maintained on a cooperative basis, and to authorize cooperation and sharing among localities, states and others in providing joint or cooperative library services in areas where the distribution of population or of existing and potential library resources make the provision of library service on an interstate basis the most effective way of providing adequate and efficient service.
Article II. Definitions
As used in this compact:
(a) "Public library agency" means any unit or agency of local or state government operating or having power to operate a library.
(b) "Private library agency" means any nongovernmental entity which operates or assumes a legal obligation to operate a library.
(c) "Library agreement" means a contract establishing an interstate library district pursuant to this compact or providing for the joint or cooperative furnishing of library services.
Article III. Interstate Library Districts
(a) Any one or more public library agencies in a party state in cooperation with any public library agency or agencies in one or more other party states may establish and maintain an interstate library district. Subject to the provisions of this compact and any other laws of the party states which pursuant hereto remain applicable, such district may establish, maintain and operate some or all of the library facilities and services for the area concerned in accordance with the terms of a library agreement therefor. Any private library agency or agencies within an interstate library district may cooperate therewith, assume duties, responsibilities and obligations thereto, and receive benefits therefrom as provided in any library agreement to which such agency or agencies become party.
(b) Within an interstate library district, and as provided by a library agreement, the performance of library functions may be undertaken on a joint or cooperative basis or may be undertaken by means of one or more arrangements between or among public or private library agencies for the extension of library privileges to the use of facilities or services operated or rendered by one or more of the individual library agencies.
(c) If a library agreement provides for joint establishment, maintenance or operation of library facilities or services by an interstate library district, such district shall have power to do any one or more of the following in accordance with such library agreement:
1. Undertake, administer and participate in programs or arrangements for securing, lending or servicing of books and other publications, any other materials suitable to be kept or made available by libraries, library equipment or for the dissemination of information about libraries, the value and significance of particular items therein, and the use thereof.
2. Accept for any of its purposes under this compact any and all donations, and grants of money, equipment, supplies, materials, and services, (conditional or otherwise) from any state or the United States or any subdivision or agency thereof, or interstate agency, or from any institution, person, firm or corporation, and receive, utilize and dispose of the same.
3. Operate mobile library units or equipment for the purpose of rendering bookmobile service within the district.
4. Employ professional, technical, clerical, and other personnel, and fix terms of employment, compensation and other appropriate benefits; and where desirable, provide for the inservice training of such personnel.
5. Acquire, hold, and dispose of any real or personal property or any interest or interests therein as may be appropriate to the rendering of library service.
6. Construct, maintain and operate a library, including any appropriate branches thereof.
7. Do such other things as may be incidental to or appropriate for the carrying out of any of the foregoing powers.
Article IV. Interstate Library Districts, Governing Board
(a) An interstate library district which establishes, maintains or operates any facilities or services in its own right shall have a governing board which shall direct the affairs of the district and act for it in all matters relating to its business. Each participating public library agency in the district shall be represented on the governing board which shall be organized and conduct its business in accordance with provision therefor in the library agreement. But in no event shall a governing board meet less often than twice a year.
(b) Any private library agency or agencies party to a library agreement establishing an interstate library district may be represented on or advise with the governing board of the district in such manner as the library agreement may provide.
Article V. State Library Agency Cooperation
Any two or more state library agencies of two or more of the party states may undertake and conduct joint or cooperative library programs, render joint or cooperative library services, and enter into and perform arrangements for the cooperative or joint acquisition, use, housing and disposition of items or collections of materials which, by reason of expense, rarity, specialized nature, or infrequency of demand therefor would be appropriate for central collection and shared use. Any such programs, services or arrangements may include provision for the exercise on a cooperative or joint basis of any power exercisable by an interstate library district and an agreement embodying any such program, service or arrangement shall contain provisions covering the subjects detailed in Article VI of this compact for interstate library agreements.
Article VI. Library Agreement
(a) In order to provide for any joint or cooperative undertaking pursuant to this compact, public and private library agencies may enter into library agreements. Any agreement executed pursuant to the provisions of this compact shall, as among the parties to the agreement:
1. Detail the specific nature of the services, programs, facilities, arrangements or properties to which it is applicable.
2. Provide for the allocation of costs and other financial responsibilities.
3. Specify the respective rights, duties, obligations and liabilities of the parties.
4. Set forth the terms and conditions for duration, renewal, termination, abrogation, disposal of joint or common property, if any, and all other matters which may be appropriate to the proper effectuation and performance of the agreement.
(b) No public or private library agency shall undertake to exercise itself, or jointly with any other library agency, by means of a library agreement any power prohibited to such agency by the constitution or statutes of its state.
(c) No library agreement shall become effective until filed with the compact administrator of each state involved, and approved in accordance with Article VII of this compact.
Article VII. Approval of Library Agreements
(a) Every library agreement made pursuant to this compact shall, prior to and as a condition precedent to its entry into force, be submitted to the Attorney General of each state in which a public library agency party thereto is situated, who shall determine whether the agreement is in proper form and compatible with the laws of his state. The attorneys general shall approve any agreement submitted to them unless they shall find that it does not meet the conditions set forth herein and shall detail in writing addressed to the governing bodies of the public library agencies concerned the specific respects in which the proposed agreement fails to meet the requirements of law. Failure to disapprove an agreement submitted hereunder within ninety days of its submission shall constitute approval thereof.
(b) In the event that a library agreement made pursuant to this compact shall deal in whole or in part with the provision of services or facilities with regard to which an officer or agency of the state government has constitutional or statutory powers of control, the agreement shall, as a condition precedent to its entry into force, be submitted to the state officer or agency having such power of control and shall be approved or disapproved by him or it as to all matters within his or its jurisdiction in the same manner and subject to the same requirements governing the action of the attorneys general pursuant to paragraph (a) of this article. This requirement of submission and approval shall be in addition to and not in substitution for the requirement of submission to and approval by the attorneys general.
Article VIII. Other Laws Applicable
Nothing in this compact or in any library agreement shall be construed to supersede, alter or otherwise impair any obligation imposed on any library by otherwise applicable law, nor to authorize the transfer or disposition of any property held in trust by a library agency in a manner contrary to the terms of such trust.
Article IX. Appropriations and Aid
(a) Any public library agency party to a library agreement may appropriate funds to the interstate library district established thereby in the same manner and to the same extent as to a library wholly maintained by it and, subject to the laws of the state in which such public library agency is situated, may pledge its credit in support of an interstate library district established by the agreement.
(b) Subject to the provisions of the library agreement pursuant to which it functions and the laws of the states in which such district is situated, an interstate library district may claim and receive any state and federal aid which may be available to library agencies.
Article X. Compact Administrator
Each state shall designate a compact administrator with whom copies of all library agreements to which his state or any public library agency thereof is party shall be filed. The administrator shall have such other powers as may be conferred upon him by the laws of his state and may consult and cooperate with the compact administrators of other party states and take such steps as may effectuate the purposes of this compact. If the laws of a party state so provide, such state may designate one or more deputy compact administrators in addition to its compact administrator.
Article XI. Entry Into Force and Withdrawal
(a) This compact shall enter into force and effect immediately upon its enactment into law by any two states. Thereafter, it shall enter into force and effect as to any other state upon the enactment thereof by such state.
(b) This compact shall continue in force with respect to a party state and remain binding upon such state until six months after such state has given notice to each other party state of the repeal thereof. Such withdrawal shall not be construed to relieve any party to a library agreement entered into pursuant to this compact from any obligation of that agreement prior to the end of its duration as provided therein.
Article XII. Construction and Severability
This compact shall be liberally construed so as effectuate the purposes thereof. The provisions of this compact shall be severable and if any phrase, clause, sentence or provision of this compact is declared to be contrary to the constitution of any party state or of the United States or the applicability thereof to any government, agency, person or circumstance is held invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this compact shall be held contrary to the constitution of any state party thereto, the compact shall remain in full force and effect as to the remaining states and in full force and effect as to the state affected as to all severable matters.
SECTION 85. Section 39-7-37, Mississippi Code of 1972, is amended as follows:
39-7-37. In addition to, and without limiting the other powers of the Attorney General of the State of Mississippi and without altering or waiving any criminal penalty provision of this chapter, the Attorney General shall have the power to bring an action, subject to the provisions of Sections 1 and 2 of this act, in the name of the State of Mississippi in any court of competent jurisdiction to enjoin violations or threatened violations of this chapter, and for the return of items taken in violation of the provisions hereof, and for the restoration of alterations made in violation of the provisions hereof. The venue of such actions shall lie in the county in which the activity sought to be enjoined is alleged to be taking place, or in the county from which the items were taken. Any citizen in the State of Mississippi shall have the power to bring an action in any court of competent jurisdiction to enjoin violations or threatened violations of this chapter, and for the return of items taken in violation of the provisions hereof. The venue of such actions shall lie in the county in which the activity sought to be enjoined is alleged to be taking place, or in the county from which the items were taken.
SECTION 86. Section 41-7-79, Mississippi Code of 1972, is amended as follows:
41-7-79. Each state institution shall have the power to assess and collect charges from patients, patients' estates and from all persons legally liable for the cost of care of such patients in such state institution. The maximum charges which may be made shall be based on the estimated cost of operating the institution, and such costs shall include a reasonable amount for depreciation. The director or the governing board of each institution, as appropriate, shall investigate or cause to be investigated the financial ability of each patient, his or her estate, and all other persons legally liable for the cost or care of the patient, and the charges assessed shall be in accordance with the ability of the person assessed to pay.
The Director of the Mississippi Children's Rehabilitation Center or the governing board of the center, as appropriate, upon conclusion of the investigation of the financial ability of each patient and all other persons legally liable for the cost of care of the patient, shall assess a fee against each patient based on the financial ability of such patient or others legally liable for such patient to pay. The fee shall be adjustable and commensurate with the patient's financial ability to pay. In order to receive the benefits of the sliding scale fee each patient is required to provide for the Children's Rehabilitation Center sufficient financial information in order to allow the center to make a determination as to whether or not a reduced fee is appropriate. The center shall not utilize such fee scale for any patient unless the patient has a need for additional treatment, and has no insurance covering his treatment or such insurance is exhausted. The Children's Rehabilitation Center shall make every effort to collect the total charges from a patient, the patient's estate and from all persons legally liable for the cost of care of the patient before it may utilize a sliding fee scale for the patient.
After three (3) good faith attempts have been made to collect a remaining balance of such charges, and upon the recommendation of the Children's Rehabilitation Center fiscal officer, said balance may be declared uncollectible and worthless, and no longer listed as an asset.
In the determination of ability to pay, the director or governing board shall not work an undue hardship on any patient or person legally responsible for such a patient. The value of a homestead shall not be considered in determining the ability to pay. The number of dependents of a patient or the party legally responsible for such patient shall be considered in determining ability to pay. The value of real and/or personal property may also be considered.
The director or the governing board, as appropriate, shall have authority to enter into agreements with the patients or others legally liable whereby periodic payments can be made on said accounts. The director or governing board may accept notes, secured or open, or any other evidences of indebtedness.
The director or the governing board, as appropriate, of each state institution shall have the right to institute suits where necessary or advisable, and it shall be the duty of the Attorney General to institute such suits, subject to the provisions of Sections 1 and 2 of this act, either in the name of the institution or in the name of the State of Mississippi. Except in matters involving the administration of estates, the probate of wills or the appointment of guardians or conservators, venue for such suits shall lie in the county in which the institution is located, and the venue shall not be subject to change.
SECTION 87. Section 41-9-35, Mississippi Code of 1972, is amended as follows:
41-9-35. Notwithstanding the existence or pursuit of any other remedy, the licensing agency, may in the manner provided by law, upon the advice of the Attorney General who, except as otherwise authorized in Section 7-5-39, shall represent the licensing agency in the proceedings, maintain an action in the name of the state for an injunction or other process against any person or governmental unit to restrain or prevent the establishment, conduct, management or operation of a hospital without a license as provided for in Section 41-9-11, subject to the provisions of Sections 1 and 2 of this act.
SECTION 88. Section 41-51-33, Mississippi Code of 1972, is amended as follows:
41-51-33. The Attorney General of the State of Mississippi may bring an action in the name of the people of the State of Mississippi to enjoin the continued operation of any disposal or rendering plant found to be operating within this state for which no license has been obtained under this chapter or for which such license has been suspended or revoked, subject to the provisions of Sections 1 and 2 of this act.
SECTION 89. Section 41-71-21, Mississippi Code of 1972, is amended as follows:
41-71-21. Any person or persons or other entity or entities establishing, managing or operating a home health agency or conducting the business of a home health agency without the required license, or which otherwise violate any of the provisions of this chapter or the rules, regulations or standards promulgated and established in furtherance of this chapter, shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than Five Hundred Dollars ($500.00) for each offense. Each day of a continuing violation shall be considered a separate offense. The licensing agency may seek injunctive relief in the event it deems such action necessary after consulting with the State Attorney General, subject to the provisions of Sections 1 and 2 of this act.
SECTION 90. Section 43-11-27, Mississippi Code of 1972, is amended as follows:
43-11-27. Notwithstanding the existence or pursuit of any other remedy, the licensing agency may, in the manner provided by law, upon the advice of the Attorney General who, except as otherwise authorized in Section 7-5-39, shall represent the licensing agency in the proceedings, maintain an action in the name of the state for injunction or other process against any person to restrain or prevent the establishment, conduct, management or operation of an institution for the aged or infirm without a license under this chapter, subject to the provisions of Sections 1 and 2 of this act.
SECTION 91. Section 43-13-145, Mississippi Code of 1972, is amended as follows:
43-13-145. (1) (a) Upon each nursing facility licensed by the State of Mississippi, there is levied an assessment in an amount set by the division, equal to the maximum rate allowed by federal law or regulation, for each licensed and occupied bed of the facility.
(b) A nursing facility is exempt from the assessment levied under this subsection if the facility is operated under the direction and control of:
(i) The United States Veterans Administration or other agency or department of the United States government;
(ii) The State Veterans Affairs Board; or
(iii) The University of Mississippi Medical Center.
(2) (a) Upon each intermediate care facility for individuals with intellectual disabilities licensed by the State of Mississippi, there is levied an assessment in an amount set by the division, equal to the maximum rate allowed by federal law or regulation, for each licensed and occupied bed of the facility.
(b) An intermediate care facility for individuals with intellectual disabilities is exempt from the assessment levied under this subsection if the facility is operated under the direction and control of:
(i) The United States Veterans Administration or other agency or department of the United States government;
(ii) The State Veterans Affairs Board; or
(iii) The University of Mississippi Medical Center.
(3) (a) Upon each psychiatric residential treatment facility licensed by the State of Mississippi, there is levied an assessment in an amount set by the division, equal to the maximum rate allowed by federal law or regulation, for each licensed and occupied bed of the facility.
(b) A psychiatric residential treatment facility is exempt from the assessment levied under this subsection if the facility is operated under the direction and control of:
(i) The United States Veterans Administration or other agency or department of the United States government;
(ii) The University of Mississippi Medical Center; or
(iii) A state agency or a state facility that either provides its own state match through intergovernmental transfer or certification of funds to the division.
(4) Hospital assessment.
(a) (i) Subject to and upon fulfillment of the requirements and conditions of paragraph (f) below, and notwithstanding any other provisions of this section, effective for state fiscal year 2016, fiscal year 2017 and fiscal year 2018, an annual assessment on each hospital licensed in the state is imposed on each non-Medicare hospital inpatient day as defined below at a rate that is determined by dividing the sum prescribed in this subparagraph (i), plus the nonfederal share necessary to maximize the Disproportionate Share Hospital (DSH) and inpatient Medicare Upper Payment Limits (UPL) Program payments and inpatient hospital access payments, by the total number of non-Medicare hospital inpatient days as defined below for all licensed Mississippi hospitals, except as provided in paragraph (d) below. If the state matching funds percentage for the Mississippi Medicaid program is sixteen percent (16%) or less, the sum used in the formula under this subparagraph (i) shall be Seventy-four Million Dollars ($74,000,000.00). If the state matching funds percentage for the Mississippi Medicaid program is twenty-four percent (24%) or higher, the sum used in the formula under this subparagraph (i) shall be One Hundred Four Million Dollars ($104,000,000.00). If the state matching funds percentage for the Mississippi Medicaid program is between sixteen percent (16%) and twenty-four percent (24%), the sum used in the formula under this subparagraph (i) shall be a pro rata amount determined as follows: the current state matching funds percentage rate minus sixteen percent (16%) divided by eight percent (8%) multiplied by Thirty Million Dollars ($30,000,000.00) and add that amount to Seventy-four Million Dollars ($74,000,000.00). However, no assessment in a quarter under this subparagraph (i) may exceed the assessment in the previous quarter by more than Three Million Seven Hundred Fifty Thousand Dollars ($3,750,000.00) (which would be Fifteen Million Dollars ($15,000,000.00) on an annualized basis). The division shall publish the state matching funds percentage rate applicable to the Mississippi Medicaid program on the tenth day of the first month of each quarter and the assessment determined under the formula prescribed above shall be applicable in the quarter following any adjustment in that state matching funds percentage rate. The division shall notify each hospital licensed in the state as to any projected increases or decreases in the assessment determined under this subparagraph (i). However, if the Centers for Medicare and Medicaid Services (CMS) does not approve the provision in Section 43-13-117(39) requiring the division to reimburse crossover claims for inpatient hospital services and crossover claims covered under Medicare Part B for dually eligible beneficiaries in the same manner that was in effect on January 1, 2008, the sum that otherwise would have been used in the formula under this subparagraph (i) shall be reduced by Seven Million Dollars ($7,000,000.00).
(ii) In addition to the assessment provided under subparagraph (i), effective for state fiscal year 2016, fiscal year 2017 and fiscal year 2018, an additional annual assessment on each hospital licensed in the state is imposed on each non-Medicare hospital inpatient day as defined below at a rate that is determined by dividing twenty-five percent (25%) of any provider reductions in the Medicaid program as authorized in Section 43-13-117(F) for that fiscal year up to the following maximum amount, plus the nonfederal share necessary to maximize the Disproportionate Share Hospital (DSH) and inpatient Medicare Upper Payment Limits (UPL) Program payments and inpatient hospital access payments, by the total number of non-Medicare hospital inpatient days as defined below for all licensed Mississippi hospitals: in fiscal year 2010, the maximum amount shall be Twenty-four Million Dollars ($24,000,000.00); in fiscal year 2011, the maximum amount shall be Thirty-two Million Dollars ($32,000,000.00); and in fiscal year 2012 and thereafter, the maximum amount shall be Forty Million Dollars ($40,000,000.00). Any such deficit in the Medicaid program shall be reviewed by the PEER Committee as provided in Section 43-13-117(F).
(iii) In addition to the assessments provided in subparagraphs (i) and (ii), effective for state fiscal year 2016, fiscal year 2017 and fiscal year 2018, an additional annual assessment on each hospital licensed in the state is imposed pursuant to the provisions of Section 43-13-117(F) if the cost containment measures described therein have been implemented and there are insufficient funds in the Health Care Trust Fund to reconcile any remaining deficit in any fiscal year. If the Governor institutes any other additional cost containment measures on any program or programs authorized under the Medicaid program pursuant to Section 43-13-117(F), hospitals shall be responsible for twenty-five percent (25%) of any such additional imposed provider cuts, which shall be in the form of an additional assessment not to exceed the twenty-five percent (25%) of provider expenditure reductions. Such additional assessment shall be imposed on each non-Medicare hospital inpatient day in the same manner as assessments are imposed under subparagraphs (i) and (ii).
(b) Payment and definitions.
(i)
The hospital assessment as described in this subsection (4) * * * shall be assessed and collected monthly
no later than the fifteenth calendar day of each month; provided, however, that
the first three (3) monthly payments shall be assessed but not be collected
until collection is satisfied for the third monthly (September) payment and the
second three (3) monthly payments shall be assessed but not be collected until
collection is satisfied for the sixth monthly (December) payment and provided
that the portion of the assessment related to the DSH payments shall be paid in
three (3) one-third (1/3) installments due no later than the fifteenth calendar
day of the payment month of the DSH payments required by Section 43-13-117(A)(18),
which shall be paid during the second, third and fourth quarters of the state
fiscal year, and provided that the assessment related to any inpatient UPL
payment(s) shall be paid no later than the fifteenth calendar day of the
payment month of the UPL payment(s) and provided assessments related to inpatient
hospital access payments will be collected beginning the initial month that the
division funds MHAP.
(ii) Definitions. For purposes of this subsection (4):
1. "Non-Medicare hospital inpatient day" means total hospital inpatient days including subcomponent days less Medicare inpatient days including subcomponent days from the hospital's 2013 Medicare cost report on file with CMS.
a. Total hospital inpatient days shall be the sum of Worksheet S-3, Part 1, column 8 row 14, column 8 row 16, and column 8 row 17, excluding column 8 rows 5 and 6.
b. Hospital Medicare inpatient days shall be the sum of Worksheet S-3, Part 1, column 6 row 14, column 6 row 16.00, and column 6 row 17, excluding column 6 rows 5 and 6.
c. Inpatient days shall not include residential treatment or long-term care days.
2. "Subcomponent inpatient day" means the number of days of care charged to a beneficiary for inpatient hospital rehabilitation and psychiatric care services in units of full days. A day begins at midnight and ends twenty-four (24) hours later. A part of a day, including the day of admission and day on which a patient returns from leave of absence, counts as a full day. However, the day of discharge, death, or a day on which a patient begins a leave of absence is not counted as a day unless discharge or death occur on the day of admission. If admission and discharge or death occur on the same day, the day is considered a day of admission and counts as one (1) subcomponent inpatient day.
(c) The assessment provided in this subsection is intended to satisfy and not be in addition to the assessment and intergovernmental transfers provided in Section 43-13-117(A)(18). Nothing in this section shall be construed to authorize any state agency, division or department, or county, municipality or other local governmental unit to license for revenue, levy or impose any other tax, fee or assessment upon hospitals in this state not authorized by a specific statute.
(d) Hospitals operated by the United States Department of Veterans Affairs and state-operated facilities that provide only inpatient and outpatient psychiatric services shall not be subject to the hospital assessment provided in this subsection.
(e) Multihospital systems, closure, merger and new hospitals.
(i) If a hospital conducts, operates or maintains more than one (1) hospital licensed by the State Department of Health, the provider shall pay the hospital assessment for each hospital separately.
(ii) Notwithstanding any other provision in this section, if a hospital subject to this assessment operates or conducts business only for a portion of a fiscal year, the assessment for the state fiscal year shall be adjusted by multiplying the assessment by a fraction, the numerator of which is the number of days in the year during which the hospital operates, and the denominator of which is three hundred sixty-five (365). Immediately upon ceasing to operate, the hospital shall pay the assessment for the year as so adjusted (to the extent not previously paid).
(f) Applicability.
The hospital assessment imposed by this subsection shall not take effect and/or shall cease to be imposed if:
(i) The assessment is determined to be an impermissible tax under Title XIX of the Social Security Act; or
(ii) CMS revokes its approval of the division's 2009 Medicaid State Plan Amendment for the methodology for DSH payments to hospitals under Section 43-13-117(A)(18).
This subsection (4) is repealed on July 1, 2018.
(5) Each health care facility that is subject to the provisions of this section shall keep and preserve such suitable books and records as may be necessary to determine the amount of assessment for which it is liable under this section. The books and records shall be kept and preserved for a period of not less than five (5) years, during which time those books and records shall be open for examination during business hours by the division, the Department of Revenue, the Office of the Attorney General and the State Department of Health.
(6) Except as provided in subsection (4) of this section, the assessment levied under this section shall be collected by the division each month beginning on March 31, 2005.
(7) All assessments collected under this section shall be deposited in the Medical Care Fund created by Section 43-13-143.
(8) The assessment levied under this section shall be in addition to any other assessments, taxes or fees levied by law, and the assessment shall constitute a debt due the State of Mississippi from the time the assessment is due until it is paid.
(9) (a) If a health care facility that is liable for payment of an assessment levied by the division does not pay the assessment when it is due, the division shall give written notice to the health care facility by certified or registered mail demanding payment of the assessment within ten (10) days from the date of delivery of the notice. If the health care facility fails or refuses to pay the assessment after receiving the notice and demand from the division, the division shall withhold from any Medicaid reimbursement payments that are due to the health care facility the amount of the unpaid assessment and a penalty of ten percent (10%) of the amount of the assessment, plus the legal rate of interest until the assessment is paid in full. If the health care facility does not participate in the Medicaid program, the division shall turn over to the Office of the Attorney General, subject to the provisions of Sections 1 and 2 of this act, the collection of the unpaid assessment by civil action. In any such civil action, the Office of the Attorney General shall collect the amount of the unpaid assessment and a penalty of ten percent (10%) of the amount of the assessment, plus the legal rate of interest until the assessment is paid in full.
(b) As an additional or alternative method for collecting unpaid assessments levied by the division, if a health care facility fails or refuses to pay the assessment after receiving notice and demand from the division, the division may file a notice of a tax lien with the chancery clerk of the county in which the health care facility is located, for the amount of the unpaid assessment and a penalty of ten percent (10%) of the amount of the assessment, plus the legal rate of interest until the assessment is paid in full. Immediately upon receipt of notice of the tax lien for the assessment, the chancery clerk shall forward the notice to the circuit clerk who shall enter the notice of the tax lien as a judgment upon the judgment roll and show in the appropriate columns the name of the health care facility as judgment debtor, the name of the division as judgment creditor, the amount of the unpaid assessment, and the date and time of enrollment. The judgment shall be valid as against mortgagees, pledgees, entrusters, purchasers, judgment creditors and other persons from the time of filing with the clerk. The amount of the judgment shall be a debt due the State of Mississippi and remain a lien upon the tangible property of the health care facility until the judgment is satisfied. The judgment shall be the equivalent of any enrolled judgment of a court of record and shall serve as authority for the issuance of writs of execution, writs of attachment or other remedial writs.
(10) As soon as possible after July 1, 2009, the Division of Medicaid shall submit to the Centers for Medicare and Medicaid Services (CMS) a state plan amendment or amendments (SPA) regarding the hospital assessment established under subsection (4) of this section. In addition to defining the assessment established in subsection (4) of this section, the state plan amendment or amendments shall include any amendments necessary to provide for the following additional annual Medicare Upper Payment Limits (UPL) Program and Disproportionate Share Hospital (DSH) payments to hospitals located in Mississippi that participate in the Medicaid program:
(a) Privately operated and nonstate government operated hospitals, within the meaning of 42 CFR Section 447.272, that have fifty (50) or fewer licensed beds as of January 1, 2009, shall receive an additional inpatient UPL payment equal to sixty-five percent (65%) of their fiscal year 2013 hospital specific inpatient UPL gap, before any payments under this subsection.
(b) General acute care hospitals licensed within the class of state hospitals shall receive an additional inpatient UPL payment equal to twenty-eight percent (28%) of their fiscal year 2013 inpatient payments, excluding DSH and UPL payments.
(c) General acute care hospitals licensed within the class of nonstate government hospitals shall receive an additional inpatient UPL payment determined by multiplying inpatient payments, excluding DSH and UPL, by the uniform percentage necessary to exhaust the maximum amount of inpatient UPL payments permissible under federal regulations. (For state fiscal year 2015 and fiscal year 2016, the state shall use 2013 inpatient payment data).
(d) In addition to other payments provided above, all hospitals licensed within the class of private hospitals shall receive an additional inpatient UPL payment determined by multiplying inpatient payments, excluding DSH and UPL, by the uniform percentage necessary to exhaust the maximum amount of UPL inpatient payments permissible under federal regulations. For state fiscal year 2015 and fiscal year 2016, the state shall use 2013 data.
(e) All hospitals satisfying the minimum federal DSH eligibility requirements (Section 1923(d) of the Social Security Act) shall, subject to OBRA 1993 payment limitations, receive an additional DSH payment. This additional DSH payment shall expend the balance of the federal DSH allotment and associated state share not utilized in DSH payments to state-owned institutions for treatment of mental diseases. The payment to each hospital shall be calculated by applying a uniform percentage to the uninsured costs of each eligible hospital, excluding state-owned institutions for treatment of mental diseases; however, that percentage for a state-owned teaching hospital located in Hinds County shall be multiplied by a factor of two (2).
(11) The portion of the hospital assessment provided in subsection (4) of this section associated with the MHAP shall not be in effect or implemented until the approval by CMS for the MHAP is obtained.
(12) The division shall implement DSH and UPL calculation methodologies that result in the maximization of available federal funds.
(13) The DSH and inpatient UPL payments shall be paid on or before December 31, March 31, and June 30 of each fiscal year, in increments of one-third (1/3) of the total calculated DSH and inpatient UPL amounts.
(14) The hospital assessment as described in subsection (4) above shall be assessed and collected monthly no later than the fifteenth calendar day of each month; provided, however, that the first three (3) monthly payments shall be assessed but not be collected until collection is satisfied for the third monthly (September) payment and the second three (3) monthly payments shall be assessed but not be collected until collection is satisfied for the sixth monthly (December) payment and provided that the portion of the assessment related to the DSH payments shall be paid in three (3) one-third (1/3) installments due no later than the fifteenth calendar day of the payment month of the DSH payments required by Section 43-13-117(A)(18), which shall be paid during the second, third and fourth quarters of the state fiscal year, and provided that the assessment related to any inpatient UPL payment(s) shall be paid no later than the fifteenth calendar day of the payment month of the UPL payment(s) and provided assessments related to MHAP will be collected beginning the initial month that the division funds MHAP.
(15) If for any reason any part of the plan for additional annual DSH and inpatient UPL payments to hospitals provided under subsection (10) of this section is not approved by CMS, the remainder of the plan shall remain in full force and effect.
(16) Nothing in this section shall prevent the Division of Medicaid from facilitating participation in Medicaid supplemental hospital payment programs by a hospital located in a county contiguous to the State of Mississippi that is also authorized by federal law to submit intergovernmental transfers (IGTs) to the State of Mississippi to fund the state share of the hospital's supplemental and/or MHAP payments.
(17) Subsections (10) through (16) of this section shall stand repealed on July 1, 2018.
SECTION 92. Section 43-13-221, Mississippi Code of 1972, is brought forward as follows:
43-13-221. The Attorney General, acting through the Director of the Fraud Control Unit, may, in any case involving alleged violations of this article, conduct an investigation or prosecution. In conducting such actions, the Attorney General, acting through the director, shall have all the powers of a district attorney, including the powers to issue or cause to be issued subpoenas or other process.
Persons employed by the Attorney General as investigators in the Medicaid Fraud Control Unit shall serve as law enforcement officers as defined in Section 45-6-3, and they shall be empowered to make arrests and to serve and execute search warrants and other valid legal process anywhere within the State of Mississippi.
SECTION 93. Section 43-15-6, Mississippi Code of 1972, is amended as follows:
43-15-6. (1) Any person, institution, facility, clinic, organization or other entity that provides services to children in a residential setting where care, lodging, maintenance, and counseling or therapy for alcohol or controlled substance abuse or for any other emotional disorder or mental illness is provided for children, whether for compensation or not, that holds himself, herself, or itself out to the public as providing such services, and that is entrusted with the care of the children to whom he, she, or it provides services, because of the nature of the services and the setting in which the services are provided shall be subject to the provisions of this section.
(2) Each entity to which this section applies shall complete, through the appropriate governmental authority, a national criminal history record information check and a child abuse registry check for each owner, operator, employee, prospective employee, volunteer or prospective volunteer of the entity and/or any other that has or may have unsupervised access to a child served by the entity. In order to determine the applicant's suitability for employment, the entity shall ensure that the applicant be fingerprinted by local law enforcement, and the results forwarded to the Department of Public Safety. If no disqualifying record is identified at the state level, the fingerprints shall be forwarded by the Department of Public Safety to the FBI for a national criminal history record check.
(3) An owner, operator, employee, prospective employee, volunteer or prospective volunteer of the entity and/or any other that has or may have unsupervised access to a child who has a criminal history of conviction or pending indictment of a crime, whether a misdemeanor or a felony, that bears upon an individual's fitness to have responsibility for the safety and well-being of children as set forth in this chapter may not provide child care or operate, or be licensed as, a residential child care program, foster parent, or foster home.
(4) All fees incurred in compliance with this section shall be borne by the individual or entity to which subsection (1) applies.
(5) The Department of Human Services shall have the authority to set fees, to exclude a particular crime or crimes or a substantiated finding of child abuse and/or neglect as disqualifying individuals or entities from providing foster care or residential child care, and adopt such other rules and regulations as may be required to carry out the provisions of this section.
(6) Any entity that violates the provisions of this section by failure to complete sex offense criminal history record information and felony conviction record information checks, as required under subsection (3) of this section, shall be subject to a penalty of up to Ten Thousand Dollars ($10,000.00) for each such violation and may be enjoined from further operation until it complies with this section in actions maintained by the Attorney General, subject to the provisions of Sections 1 and 2 of this act.
(7) The Department of Human Services and/or its officers, employees, attorneys, agents and representatives shall not be held civilly liable for any findings, recommendations or actions taken pursuant to this section.
SECTION 94. Section 43-15-121, Mississippi Code of 1972, is amended as follows:
43-15-121. In addition to, and notwithstanding, any other remedy provided by law, the division may, in a manner provided by law and upon the advice of the Attorney General who, except as otherwise authorized in Section 7-5-39, shall represent the division in the proceedings, maintain an action, subject to the provisions of Sections 1 and 2 of this act, in the name of the state for injunction or other process against any person or entity to restrain or prevent the establishment, management or operation of a program or facility or performance of services in violation of this article or rules of the division.
SECTION 95. Section 43-16-21, Mississippi Code of 1972, is amended as follows:
43-16-21. Notwithstanding the existence of any other remedy, the department may, in the manner provided by law, in termtime or in vacation, upon the advice of the Attorney General who, except as otherwise authorized in Section 7-5-39, shall represent the department in the proceedings, maintain an action, subject to the provisions of Sections 1 and 2 of this act as applicable, in the name of the state for an injunction or restraining order to cease the operation of the home, and to provide for the appropriate removal of the children from the home and placement in the custody of the parents or legal guardians, the Department of Human Services, or any other appropriate entity in the discretion of the court. Such action shall be brought in the chancery court or the youth court, as appropriate, of the county in which such child residential home is located, and shall only be initiated for the following violations:
(a) Providing supervision, care, lodging or maintenance for any children in such home without filing notification in accordance with this chapter.
(b) Failure to satisfactorily comply with local health department or State Fire Marshal inspections made pursuant to Section 43-16-15, regarding the health, nutrition, cleanliness, safety, sanitation, written records and discipline policy of such home.
(c) Suspected abuse and/or neglect of the children served by such home, as defined in Section 43-21-105.
SECTION 96. Section 43-20-21, Mississippi Code of 1972, is amended as follows:
43-20-21. Notwithstanding the existence of any other remedy, the licensing agency may, in the manner provided by law, in termtime or in vacation, upon the advice of the Attorney General who, except as otherwise authorized in Section 7-5-39, shall represent the licensing agency in the proceedings, maintain an action, subject to the provisions of Sections 1 and 2 of this act, in the name of the state for an injunction or other proper remedy against any person to restrain or prevent the establishment, conduct, management or operation of a child care facility without license under this chapter, or otherwise in violation of this chapter.
SECTION 97. Section 43-25-101, Mississippi Code of 1972, is brought forward as follows:
43-25-101. The Governor, on behalf of this state, may execute a compact in substantially the following form, and the Legislature signifies in advance its approval and ratification of the compact:
THE INTERSTATE COMPACT FOR JUVENILES
ARTICLE I
PURPOSE
The compacting states to this Interstate Compact recognize that each state is responsible for the proper supervision or return of juveniles, delinquents and status offenders who are on probation or parole and who have absconded, escaped or run away from supervision and control and in so doing have endangered their own safety and the safety of others. The compacting states also recognize that each state is responsible for the safe return of juveniles who have run away from home and in doing so have left their state of residence. The compacting states also recognize that Congress, by enacting the Crime Control Act, 4 USCS Section 112 (1965), has authorized and encouraged compacts for cooperative efforts and mutual assistance in the prevention of crime.
It is the purpose of this compact, through means of joint and cooperative action among the compacting states to:
(a) Ensure that the adjudicated juveniles and status offenders subject to this compact are provided adequate supervision and services in the receiving state as ordered by the adjudicating judge or parole authority in the sending state;
(b) Ensure that the public safety interests of the citizens, including the victims of juvenile offenders, in both the sending and receiving states are adequately protected.
(c) Return juveniles who have run away, absconded or escaped from supervision or control or have been accused of an offense to the state requesting their return;
(d) Make contracts for the cooperative institutionalization in public facilities in member states for delinquent youth needing special services;
(e) Provide for the effective tracking and supervision of juveniles;
(f) Equitably allocate the costs, benefits and obligations of the compacting states;
(g) Establish procedures to manage the movement between states of juvenile offenders released to the community under the jurisdiction of courts, juvenile departments, or any other criminal or juvenile justice agency that has jurisdiction over juvenile offenders;
(h) Ensure immediate notice to jurisdictions where defined offenders are authorized to travel or to relocate across state lines;
(i) Establish procedures to resolve pending charges (detainers) against juvenile offenders before transfer or release to the community under the terms of this compact.
(j) Establish a system of uniform data collection on information pertaining to juveniles subject to this compact that allows access by authorized juvenile justice and criminal justice officials, and regular reporting of compact activities to heads of state, executive, judicial, and legislative branches and juvenile and criminal justice administrators;
(k) Monitor compliance with rules governing interstate movement of juveniles and initiate interventions to address and correct noncompliance;
(l) Coordinate training and education regarding the regulation of interstate movement of juveniles for officials involved in that activity; and
(m) Coordinate the implementation and operation of the compact with the Interstate Compact for the Placement of Children, the Interstate Compact for Adult Offender Supervision and other compacts affecting juveniles particularly in those cases where concurrent or overlapping supervision issues arise.
It is the policy of the compacting states that the activities conducted by the Interstate Commission created by this compact are the formation of public policies and therefore are public business. Furthermore, the compacting states shall cooperate and observe their individual and collective duties and responsibilities for the prompt return and acceptance of juveniles subject to the provisions of this compact. The provisions of this compact shall be reasonably and liberally construed to accomplish the purposes and policies of the compact.
ARTICLE II
DEFINITIONS
As used in this Compact, unless the context clearly requires a different construction:
(a) "Bylaws" means those bylaws established by the Interstate Commission for its governance, or for directing or controlling its actions or conduct.
(b) "Compact administrator" means the individual in each compacting state appointed under the terms of this compact, responsible for the administration and management of the state's supervision and transfer of juveniles subject to the terms of this compact, the rules adopted by the Interstate Commission and policies adopted by the State Council under this compact.
(c) "Compacting state" means any state that has enacted the enabling legislation for this compact.
(d) "Commissioner" means the voting representative of each compacting state appointed pursuant to Article III of this compact.
(e) "Court" means any court having jurisdiction over delinquent, neglected or dependent children.
(f) "Deputy compact administrator" means the individual, if any, in each compacting state appointed to act on behalf of a compact administrator under the terms of this compact responsible for the administration and management of the state's supervision and transfer of juveniles subject to the terms of this compact, the rules adopted by the Interstate Commission and policies adopted by the State Council under this compact.
(g) "Interstate Commission" means the Interstate Commission for Juveniles created by Article III of this compact.
(h) "Juvenile" means any person defined as a juvenile in any member state or by the rules of the Interstate Commission, including:
(i) Accused delinquent, which is a person charged with an offense that, if committed by an adult, would be a criminal offense;
(ii) Adjudicated delinquent, which is a person found to have committed an offense that, if committed by an adult, would be a criminal offense;
(iii) Accused status offender, which is a person charged with an offense that would not be a criminal offense if committed by an adult;
(iv) Adjudicated status offender, which is a person found to have committed an offense that would not be a criminal offense if committed by an adult; and
(v) Nonoffender, which is a person in need of supervision who has not been accused or adjudicated a status offender or delinquent.
(i) "Noncompacting state" means any state that has not enacted the enabling legislation for this compact.
(j) "Probation or parole" means any kind of supervision or conditional release of juveniles authorized under the laws of the compacting states.
(k) "Rules" means a written statement by the Interstate Commission promulgated under Article VI of this compact that is of general applicability, implements, interprets or prescribes a policy or provision of the compact, or an organizational, procedural, or practice requirement of the commission, and has the force and effect of statutory law in a compacting state, and includes the amendment, repeal or suspension of an existing rule.
(l) "State" means a state of the United States, the District of Columbia (or its designee), the Commonwealth of Puerto Rico, the United States Virgin Islands, Guam, American Samoa and the Northern Marianas Islands.
ARTICLE III
INTERSTATE COMMISSION FOR JUVENILES
(1) The compacting states create the "Interstate Commission for Juveniles." The commission shall be a body corporate and joint agency of the compacting states. The commission shall have all the responsibilities, powers and duties set forth in this compact, and such additional powers as may be conferred upon it by subsequent action of the respective legislatures of the compacting states in accordance with the terms of this compact.
(2) The Interstate Commission shall consist of commissioners appointed by the appropriate appointing authority in each state pursuant to the rules and requirements of each compacting state and in consultation with the State Council for Interstate Juvenile Supervision created under this compact. The commissioner shall be the compact administrator, deputy compact administrator or designee from that state who shall serve on the Interstate Commission in such capacity under the applicable law of the compacting state.
(3) In addition to the commissioners who are the voting representatives of each state, the Interstate Commission shall include individuals who are not commissioners, but who are members of interested organizations. Those noncommissioner members must include a member of the national organizations of governors, legislators, state chief justices, attorneys general, Interstate Compact for Adult Offender for Adult Offender Supervision, Interstate Compact for the Placement of Children, juvenile justice and juvenile corrections officials and crime victims. All noncommissioner members of the Interstate Commission shall be ex officio nonvoting members. The Interstate Commission may provide in its bylaws for additional ex officio nonvoting members, including members of other national organizations, in such numbers as determined by the commission.
(4) Each compacting state represented at any meeting of the commission is entitled to one (1) vote. A majority of the compacting states shall constitute a quorum for the transaction of business, unless a larger quorum is required by the bylaws of the Interstate Commission.
(5) The commission shall meet at least once each calendar year. The chairperson may call additional meetings and, upon the request of a simple majority of the compacting states, shall call additional meetings. Public notice shall be given of all meetings and meetings shall be open to the public.
(6) The Interstate Commission shall establish an executive committee, which shall include commission officers, members and others as determined by the bylaws. The executive committee shall have the power to act on behalf of the Interstate Commission during periods when the Interstate Commission is not in session, with the exception of rule making and/or amendment to the compact. The executive committee shall oversee the day-to-day activities of the administration of the compact managed by an executive director and Interstate Commission staff; administers enforcement and compliance with the provisions of the compact, its bylaws and rules and performs such other duties as directed by the Interstate Commission or set forth in the bylaws.
(7) Each member of the Interstate Commission shall have the right and power to cast a vote to which that compacting state is entitled and to participate in the business and affairs of the Interstate Commission. A member shall vote in person and shall not delegate a vote to another compacting state. However, a commissioner, in consultation with the State Council, shall appoint another authorized representative, in the absence of the commissioner from that state, to cast a vote on behalf of the compacting state at a specified meeting. The bylaws may provide for members' participation in meetings by telephone or other means of telecommunication or electronic communication.
(8) The Interstate Commission's bylaws shall establish conditions and procedures under which the Interstate Commission shall make its information and official records available to the public for inspection or copying. The Interstate Commission may exempt from disclosure any information or official records to the extent they would adversely affect personal privacy rights or proprietary interests.
(9) Public notice shall be given of all meetings and all meetings shall be open to the public, except as set forth in the rules or as otherwise provided in the compact. The Interstate Commission and any of its committees may close a meeting to the public where it determines by two-thirds (2/3) vote that an open meeting would be likely to:
(a) Relate solely to the Interstate Commission's internal personnel practice and procedures;
(b) Disclose matters specifically exempted from disclosure by statute;
(c) Disclose trade secrets or commercial or financial information that is privileged or confidential;
(d) Involve accusing any person of a crime, or formally censuring any person;
(e) Disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;
(f) Disclose investigative records compiled for law enforcement purposes;
(g) Disclose information contained in or related to examination, operating or condition reports prepared by, or on behalf of or for the use of, the Interstate Commission with respect to a regulated person or entity for the purpose of regulation or supervision of the person or entity;
(h) Disclose information, the premature disclosure of which would significantly endanger the stability of a regulated person or entity; or
(i) Specifically relate to the Interstate Commission's issuance of a subpoena, or its participation in a civil action or other legal proceeding.
(10) For every meeting closed under this provision, the Interstate Commission's legal counsel shall publicly certify that, in the legal counsel's opinion, the meeting may be closed to the public, and shall reference each relevant exemptive provision. The Interstate Commission shall keep minutes that shall fully and clearly describe all matters discussed in any meeting and shall provide a full and accurate summary of any actions taken, and the reasons therefor, including a description of each of the views expressed on any item and the record of any roll call vote (reflected in the vote of each member on the question). All documents considered in connection with any action shall be identified in the minutes.
(11) The Interstate Commission shall collect standardized data concerning the interstate movement of juveniles as directed through its rules, which shall specify the data to be collected, the means of collection, data exchange and reporting requirements. Those methods of data collection, exchange and reporting shall, insofar as is reasonably possible, conform to up-to-date technology and coordinate its information functions with the appropriate repository of records.
ARTICLE IV
POWERS AND DUTIES OF THE INTERSTATE COMMISSION
The commission shall have the following powers and duties:
(a) To provide for dispute resolution among compacting states.
(b) To promulgate rules to effect the purposes and obligations as enumerated in this compact, which shall have the force and effect of statutory law and shall be binding in the compacting states to the extent and in the manner provided in this compact.
(c) To oversee, supervise and coordinate the interstate movement of juveniles subject to the terms of this compact and any bylaws adopted and rules promulgated by the Interstate Commission.
(d) To enforce compliance with the compact provisions, the rules promulgated by the Interstate Commission, and the bylaws, using all necessary and proper means, including, but not limited to, the use of judicial process.
(e) To establish and maintain offices, which shall be located within one or more of the compacting states.
(f) To purchase and maintain insurance and bonds.
(g) To borrow, accept, hire or contract for services of personnel.
(h) To establish and appoint committees and hire staff that it deems necessary for the carrying out of its functions including, but not limited to, an executive committee as required by Article III, which shall have the power to act on behalf of the Interstate Commission in carrying out its powers and duties under this compact.
(i) To elect or appoint officers, attorneys, employees, agents or consultants, and to fix their compensation, define their duties and determine their qualifications; and to establish
the Interstate Commission's personnel policies and programs relating to, inter alia, conflicts of interest, rates of compensation and qualifications of personnel.
(j) To accept any and all donations and grants of money, equipment, supplies, materials and services, and to receive, utilize and dispose of it.
(k) To lease, purchase, accept contributions or donations of or otherwise to own, hold, improve or use any property, real, personal or mixed.
(l) To sell, convey, mortgage, pledge, lease, exchange, abandon or otherwise dispose of any property, real, personal or mixed.
(m) To establish a budget and make expenditures and levy dues as provided in Article VIII of this compact.
(n) To sue and be sued.
(o) To adopt a seal and bylaws governing the management and operation of the Interstate Commission.
(p) To perform such functions as may be necessary or appropriate to achieve the purposes of this compact.
(q) To report annually to the legislatures, governors, judiciary, and State Councils of the compacting states concerning the activities of the Interstate Commission during the preceding year. Those reports also shall include any recommendations that may have been adopted by the Interstate Commission.
(r) To coordinate education, training and public awareness regarding the interstate movement of juveniles for officials involved in that activity.
(s) To establish uniform standards of the reporting, collecting and exchanging of data.
(t) To maintain its corporate books and records in accordance with the bylaws.
ARTICLE V
ORGANIZATION AND OPERATION OF THE INTERSTATE COMMISSION
(1) Bylaws. The Interstate Commission shall, by a majority of the members present and voting, within twelve (12) months after the first Interstate Commission meeting, adopt bylaws to govern its conduct as may be necessary or appropriate to carry out the purposes of the compact, including, but not limited to:
(a) Establishing the fiscal year of the Interstate Commission;
(b) Establishing an executive committee and such other committees as may be necessary;
(c) Providing for the establishment of committees governing any general or specific delegation of any authority or function of the Interstate Commission;
(d) Providing reasonable procedures for calling and conducting meetings of the Interstate Commission, and ensuring reasonable notice of each such meeting;
(e) Establishing the titles and responsibilities of the officers of the Interstate Commission;
(f) Providing a mechanism for concluding the operations of the Interstate Commission and the return of any surplus funds that may exist upon the termination of the compact after the payment and/or reserving of all of its debts and obligations;
(g) Providing "start-up" rules for initial administration of the compact; and
(h) Establishing standards and procedures for compliance and technical assistance in carrying out the compact.
(2) Officers and Staff. (a) The Interstate Commission shall, by a majority of the members, elect annually from among its members a chairperson and a vice chairperson each of whom shall have such authority and duties as may be specified in the bylaws. The chairperson or, in the chairperson's absence or disability, the vice chairperson shall preside at all meetings of the Interstate Commission. The officers so elected shall serve without compensation or remuneration from the Interstate Commission; however, subject to the availability of budgeted funds, the officers shall be reimbursed for any ordinary and necessary costs and expenses incurred by them in the performance of their duties and responsibilities as officers of the Interstate Commission.
(b) The Interstate Commission shall, through its executive committee, appoint or retain an executive director for such period, upon such terms and conditions and for such compensation as the Interstate Commission may deem appropriate. The executive director shall serve as secretary to the Interstate Commission, but shall not be a member and shall hire and supervise such other staff as may be authorized by the Interstate Commission.
(3) Qualified Immunity, Defense and Indemnification. (a) The commission's executive director and employees shall be immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property, personal injury or other civil liability caused or arising out of or relating to any actual or alleged act, error, or omission that occurred, or that the person had a reasonable basis for believing occurred within the scope of commission employment, duties or responsibilities; however, any such person shall not be protected from suit or liability for any damage, loss, injury or liability caused by the intentional or willful and wanton misconduct of any such person.
(b) The liability of any commissioner, or the employee of an agent of a commissioner, acting within the scope of the person's employment or duties for acts, errors or omissions occurring within the person's state, may not exceed the limits of liability set forth under the Constitution and laws of that state for state officials, employees and agents. Nothing in this subsection shall be construed to protect any such person from suit or liability for any damage, loss, injury or liability caused by the intentional or willful and wanton misconduct of any such person.
(c) The Interstate Commission shall defend the executive director or the employees or representatives of the Interstate Commission and, subject to the approval of the Attorney General of the state represented by any commissioner of a compacting state, shall defend the commissioner or the commissioner's representatives or employees in any civil action seeking to impose liability arising out of any actual or alleged act, error or omission that occurred within the scope of interstate commission employment, duties or responsibilities, or that the defendant has a reasonable basis for believing occurred within the scope of interstate commission employment, duties or responsibilities, provided that the actual or alleged act, error or omission did not result from intentional or willful and wanton misconduct on the part of the person.
(d) The Interstate Commission shall indemnify and hold the commissioner of a compacting state, or the commissioner's representatives or employees or the Interstate Commission's representatives or employees, harmless in the amount of any settlement or judgment obtained against those persons arising out of any actual or alleged act, error or omission that occurred within the scope of interstate commission employment, duties or responsibilities, or that those persons had a reasonable basis for believing occurred within the scope of interstate commission employment, duties or responsibilities, provided that the actual or alleged act, error or omission did not result from intentional or willful and wanton misconduct on the part of such persons.
ARTICLE VI
RULE-MAKING FUNCTIONS OF THE INTERSTATE COMMISSION
(1) The Interstate Commission shall promulgate and publish rules in order to effectively and efficiently achieve the purposes of the compact.
(2) Rule making shall occur using the criteria set forth in this article and the bylaws and rules adopted under this article. That rule making shall substantially conform to the principles of the "Model State Administrative Procedures Act," 1981 Act, Uniform Laws Annotated, Volume 15, page 1 (2000), or such other administrative procedures act, as the Interstate Commission deems appropriate consistent with due process requirements under the United States Constitution as now or hereafter interpreted by the United States Supreme Court. All rules and amendments shall become binding as of the date specified, as published with the final version of the rule as approved by the commission.
(3) When promulgating a rule, the Interstate Commission shall, at a minimum:
(a) Publish the proposed rule's entire text stating the reason(s) for that proposed rule;
(b) Allow and invite any and all persons to submit written data, facts, opinions, and arguments, which information shall be added to the record, and be made publicly available;
(c) Provide an opportunity for an informal hearing if petitioned by ten (10) or more persons; and
(d) Promulgate a final rule and its effective date, if appropriate, based on input from state or local officials, or interested parties.
(4) Allow not later than sixty (60) days after a rule is promulgated, any interested person to file a petition in the United States District Court for the District of Columbia or in the Federal District Court where the Interstate Commission's principal office is located for judicial review of the rule. If the court finds that the Interstate Commission's action is not supported by substantial evidence in the rule-making record, the court shall hold the rule unlawful and set it aside. For purposes of this subsection, evidence is substantial if it would be considered substantial evidence under the Model State Administrative Procedures Act.
(5) If a majority of the legislatures of the compacting states rejects a rule, those states may, by enactment of a statute or resolution in the same manner used to adopt the compact, cause that the rule shall have no further force and effect in any compacting state.
(6) The existing rules governing the operation of the Interstate Compact on Juveniles superceded by this act shall be null and void twelve (12) months after the first meeting of the Interstate Commission created under this compact.
(7) Upon determination by the Interstate Commission that a state of emergency exists, it may promulgate an emergency rule that shall become effective immediately upon adoption, provided that the usual rule-making procedures provided under this article retroactively applied to the rule as soon as reasonably possible, but no later than ninety (90) days after the effective date of the emergency rule.
ARTICLE VII
OVERSIGHT, ENFORCEMENT AND DISPUTES RESOLUTION
BY THE INTERSTATE COMMISSION
(1) Oversight. (a) The Interstate Commission shall oversee the administration and operations of the interstate movement of juveniles subject to this compact in the compacting states and shall monitor those activities being administered in noncompacting states that may significantly affect compacting states.
(b) The courts and executive agencies in each compacting state shall enforce this compact and shall take all actions necessary and appropriate to effectuate the compact's purposes and intent. The provisions of this compact and the rules promulgated under this compact shall be received by all the judges, public officers, commissions and departments of the state government as evidence of the authorized statute and administrative rules. All courts shall take judicial notice of the compact and the rules. In any judicial or administrative proceeding in a compacting state pertaining to the subject matter of this compact that may affect the powers, responsibilities or actions of the Interstate Commission, it shall be entitled to receive all service of process in any such proceeding, and shall have standing to intervene in the proceeding for all purposes.
(2) Dispute Resolution. (a) The compacting states shall report to the Interstate Commission on all issues and activities necessary for the administration of the compact, as well as issues and activities pertaining to compliance with the provisions of the compact and its bylaws and rules.
(b) The Interstate Commission shall attempt, upon the request of a compacting state, to resolve any disputes or other issues that are subject to the compact and that may arise among compacting states and between compacting and noncompacting states. The commission shall promulgate a rule providing for both mediation and binding dispute resolution for disputes among the compacting states.
(c) The Interstate Commission, in the reasonable exercise of its discretion, shall enforce the provisions and rules of this compact using any or all means set forth in Article XI of this compact.
ARTICLE VIII
FINANCE
(1) The Interstate Commission shall pay or provide for the payment of the reasonable expenses of its establishment, organization and ongoing activities.
(2) The Interstate Commission shall levy on and collect an annual assessment from each compacting state to cover the cost of the internal operations and activities of the Interstate Commission and its staff, which must be in a total amount sufficient to cover the Interstate Commission's annual budget as approved each year. The aggregate annual assessment amount shall be allocated based upon a formula to be determined by the Interstate Commission, taking into consideration the population of each compacting state and the volume of interstate movement of juveniles in each compacting state, and shall promulgate a rule binding upon all compacting states which governs the assessment.
(3) The Interstate Commission shall not incur any obligations of any kind before securing the funds adequate to meet the same; nor shall the Interstate Commission pledge the credit of any of the compacting states, except by and with the authority of the compacting state.
(4) The Interstate Commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the Interstate Commission shall be subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the Interstate Commission shall be audited yearly by a certified or licensed public accountant and the report of the audit shall be included in and become part of the annual report of the Interstate Commission.
ARTICLE IX
THE STATE COUNCIL
Each member state shall create a State Council for Interstate Juvenile Supervision. While each state may determine the membership of its own State Council, its membership must include at least one (1) representative from the legislative, judicial, and executive branches of government, victims groups, and the compact administrator or designee. Each compacting state retains the right to determine the qualifications of the compact administrator or deputy compact administrator. Each State Council will advise and may exercise oversight and advocacy concerning the state's participation in Interstate Commission activities and other duties as may be determined by that state, including, but not limited to, development of policy concerning operations and procedures of the compact within that state.
ARTICLE X
COMPACTING STATES, EFFECTIVE DATE AND AMENDMENT
(1) Any state, the District of Columbia (or its designee), the Commonwealth of Puerto Rico, the United States Virgin Islands, Guam, American Samoa and the Northern Marianas Islands as defined in Article II of this compact is eligible to become a compacting state.
(2) The compact shall become effective and binding upon legislative enactment of the compact into law by no less thirty-five (35) of the states. The initial effective date shall be the later of July 1, 2004, or upon enactment into law by the thirty-fifth jurisdiction. Thereafter, it shall become effective and binding as to any other compacting state upon enactment of the compact into law by that state. The governors of nonmember states or their designees shall be invited to participate in the activities of the Interstate Commission on a nonvoting basis before adoption of the compact by all states and territories of the United States.
(3) The Interstate Commission may propose amendments to the compact for enactment by the compacting states. No amendment shall become effective and binding upon the Interstate Commission and the compacting states unless and until it is enacted into law by unanimous consent of the compacting states.
ARTICLE XI
WITHDRAWAL, DEFAULT, TERMINATION AND JUDICIAL ENFORCEMENT
(1) Withdrawal. (a) Once effective, the compact shall continue in force and remain binding upon each and every compacting state; however, a compacting state may withdraw from the compact by specifically repealing the statute that enacted the compact into law.
(b) The effective date of withdrawal is the effective date of the repeal.
(c) The withdrawing state shall immediately notify the Chairperson of the Interstate Commission in writing upon the introduction of legislation repealing this compact in the withdrawing state. The Interstate Commission shall notify the other compacting states of the withdrawing state's intent to withdraw within sixty (60) days of its receipt thereof.
(d) The withdrawing state is responsible for all assessments, obligations and liabilities incurred through the effective date of withdrawal, including any obligations, the performance of which extend beyond the effective date of withdrawal.
(e) Reinstatement following withdrawal of any compacting state shall occur upon the withdrawing state reenacting the compact or upon such later date as determined by the Interstate Commission.
(2) Technical Assistance, Fines, Suspension, Termination and Default. (a) If the Interstate Commission determines that any compacting state has at any time defaulted in the performance of any of its obligations or responsibilities under this compact, or the bylaws or duly promulgated rules, the Interstate Commission may impose any or all of the following penalties:
(i) Remedial training and technical assistance as directed by the Interstate Commission;
(ii) Alternative dispute resolution;
(iii) Fines, fees and costs in such amounts as are deemed to be reasonable as fixed by the Interstate Commission; and
(iv) Suspension or termination of membership in the compact, which shall be imposed only after all other reasonable means of securing compliance under the bylaws and rules have been exhausted and the Interstate Commission has therefore determined that the offending state is in default. Immediate notice of suspension shall be given by the Interstate Commission to the governor, the chief justice or the chief judicial officer of the state, the majority and minority leaders of the defaulting state's legislature and the State Council. The grounds for default include, but are not limited to, failure of a compacting state to perform the obligations or responsibilities imposed upon it by this compact, the bylaws or duly promulgated rules and any other grounds designated in commission bylaws and rules. The Interstate Commission shall immediately notify the defaulting state in writing of the penalty imposed by the Interstate Commission and of the default pending a cure of the default. The commission shall stipulate the conditions and the time period within which the defaulting state must cure its default. If the defaulting state fails to cure the default within the time period specified by the commission, the defaulting state shall be terminated from the compact upon an affirmative vote of a majority of the compacting states and all rights, privileges and benefits conferred by this compact shall be terminated from the effective date of termination.
(b) Within sixty (60) days of the effective date of termination of a defaulting state, the commission shall notify the governor, the chief justice or the chief judicial officer, the majority and minority leaders of the defaulting state's legislature, and the State Council of that termination.
(c) The defaulting state is responsible for all assessments, obligations and liabilities incurred through the effective date of termination including any obligations, the performance of which extends beyond the effective date of termination.
(d) The Interstate Commission shall not bear any costs relating to the defaulting state unless otherwise mutually agreed upon in writing between the Interstate Commission and the defaulting state.
(e) Reinstatement following termination of any compacting state requires both a reenactment of the compact by the defaulting state and the approval of the Interstate Commission pursuant to the rules.
(3) Judicial Enforcement. The Interstate Commission may, by majority vote of the members, initiate legal action in the United States District Court for the District of Columbia or, at the discretion of the Interstate Commission, in the federal district court where the Interstate Commission has its offices, to enforce compliance with the provisions of the compact, its duly promulgated rules and bylaws, against any compacting state in default. If judicial enforcement is necessary, the prevailing party shall be awarded all costs of the litigation, including reasonable attorney's fees.
(4) Dissolution of Compact. (a) The compact dissolves effective upon the date of the withdrawal or default of the compacting state, which reduces membership in the compact to one (1) compacting state.
(b) Upon the dissolution of the compact, the compact becomes null and void and shall be of no further force or effect, and the business and affairs of the Interstate Commission shall be concluded and any surplus funds shall be distributed in accordance with the bylaws.
ARTICLE XII
SEVERABILITY AND CONSTRUCTION
(1) The provisions of this compact shall be severable, and if any phrase, clause, sentence or provision is deemed unenforceable, the remaining provisions of the compact shall be enforceable.
(2) The provisions of this compact shall be liberally construed to effectuate its purposes.
ARTICLE XIII
BINDING EFFECT OF COMPACT AND OTHER LAWS
(1) Other Laws. (a) Nothing in this compact prevents the enforcement of any other law of a compacting state that is not inconsistent with this compact.
(b) All compacting states' laws other than state constitutions and other interstate compacts conflicting with this compact are superseded to the extent of the conflict.
(2) Binding Effect of the Compact. (a) All lawful actions of the Interstate Commission, including all rules and bylaws promulgated by the Interstate Commission, are binding upon the compacting states.
(b) All agreements between the Interstate Commission and the compacting states are binding in accordance with their terms.
(c) Upon the request of a party to a conflict over meaning or interpretation of Interstate Commission actions, and upon a majority vote of the compacting states, the Interstate Commission may issue advisory opinions regarding that meaning or interpretation.
(d) If any provision of this compact exceeds the constitutional limits imposed on the legislature of any compacting state, the obligations, duties, powers or jurisdiction sought to be conferred by that provision upon the Interstate Commission shall be ineffective and those obligations, duties, powers or jurisdiction shall remain in the compacting state and shall be exercised by the agency thereof to which those obligations, duties, powers or jurisdiction are delegated by law in effect at the time this compact becomes effective.
SECTION 98. Section 45-9-53, Mississippi Code of 1972, is amended as follows:
45-9-53. (1) This section and Section 45-9-51 do not affect the authority that a county or municipality may have under another law:
(a) To require citizens or public employees to be armed for personal or national defense, law enforcement, or another lawful purpose;
(b) To regulate the discharge of firearms within the limits of the county or municipality. A county or municipality may not apply a regulation relating to the discharge of firearms or other weapons in the extraterritorial jurisdiction of the county or municipality or in an area annexed by the county or municipality after September 1, 1981, if the firearm or other weapon is:
(i) A shotgun, air rifle or air pistol, BB gun or bow and arrow discharged:
1. On a tract of land of ten (10) acres or more and more than one hundred fifty (150) feet from a residence or occupied building located on another property; and
2. In a manner not reasonably expected to cause a projectile to cross the boundary of the tract; or
(ii) A center fire or rimfire rifle or pistol or a muzzle-loading rifle or pistol of any caliber discharged:
1. On a tract of land of fifty (50) acres or more and more than three hundred (300) feet from a residence or occupied building located on another property; and
2. In a manner not reasonably expected to cause a projectile to cross the boundary of the tract;
(c) To regulate the use of property or location of businesses for uses therein pursuant to fire code, zoning ordinances, or land-use regulations, so long as such codes, ordinances and regulations are not used to circumvent the intent of Section 45-9-51 or paragraph (e) of this subsection;
(d) To regulate the use of firearms in cases of insurrection, riots and natural disasters in which the city finds such regulation necessary to protect the health and safety of the public. However, the provisions of this section shall not apply to the lawful possession of firearms, ammunition or components of firearms or ammunition;
(e) To regulate the storage or transportation of explosives in order to protect the health and safety of the public, with the exception of black powder which is exempt up to twenty-five (25) pounds per private residence and fifty (50) pounds per retail dealer;
(f) To regulate the carrying of a firearm at: (i) a public park or at a public meeting of a county, municipality or other governmental body; (ii) a political rally, parade or official political meeting; or (iii) a nonfirearm-related school, college or professional athletic event; or
(g) To regulate the receipt of firearms by pawnshops.
(2) The exception provided by subsection (1)(f) of this section does not apply if the firearm was in or carried to and from an area designated for use in a lawful hunting, fishing or other sporting event and the firearm is of the type commonly used in the activity.
(3) This section and Section 45-9-51 do not authorize a county or municipality or their officers or employees to act in contravention of Section 33-7-303.
(4) No county or a municipality may use the written notice provisions of Section 45-9-101(13) to prohibit concealed firearms on property under their control except:
(a) At a location listed in Section 45-9-101(13) indicating that a license issued under Section 45-9-101 does not authorize the holder to carry a firearm into that location, as long as the sign also indicates that carrying a firearm is unauthorized only for license holders without a training endorsement or that it is a location included in Section 97-37-7(2) where carrying a firearm is unauthorized for all license holders; and
(b) At any location under the control of the county or municipality aside from a location listed in subsection (1)(f) of this section or Section 45-9-101(13) indicating that the possession of a firearm is prohibited on the premises, as long as the sign also indicates that it does not apply to a person properly licensed under Section 45-9-101 or Section 97-37-7(2) to carry a concealed firearm or to a person lawfully carrying a firearm that is not concealed.
(5)
(a) A citizen of this state, or a person licensed to carry a concealed pistol
or revolver under Section 45-9-101, or a person licensed to carry a concealed
pistol or revolver with the endorsement under Section 97-37-7, who is adversely
affected by an ordinance or posted written
notice adopted by a county or municipality in violation of this section
may file suit for declarative and injunctive relief against a county or
municipality in the circuit court which shall have jurisdiction over the county
or municipality where the violation of this section occurs.
(b) Before instituting suit under this subsection, the party adversely impacted by the ordinance or posted written notice shall notify the Attorney General in writing of the violation and include evidence of the violation. The Attorney General shall, within thirty (30) days, investigate whether the county or municipality adopted an ordinance or posted written notice in violation of this section and provide the chief administrative officer of the county or municipality notice of his findings, including, if applicable, a description of the violation and specific language of the ordinance or posted written notice found to be in violation. The county or municipality shall have thirty (30) days from receipt of that notice to cure the violation. If the county or municipality fails to cure the violation within that thirty-day time period, a suit under paragraph (a) of this subsection may proceed, subject to the provisions of Sections 1 and 2 of this act when the suit is filed by the Attorney General. The findings of the Attorney General shall constitute a "Public Record" as defined by the Mississippi Public Records Act of 1983, Section 25-61-1 et seq.
(c) If the circuit court finds that a county or municipality adopted an ordinance or posted written notice in violation of this section and failed to cure that violation in accordance with paragraph (b) of this subsection, the circuit court shall issue a permanent injunction against a county or municipality prohibiting it from enforcing the ordinance or posted written notice. Any elected county or municipal official under whose jurisdiction the violation occurred may be civilly liable in a sum not to exceed One Thousand Dollars ($1,000.00), plus all reasonable attorney's fees and costs incurred by the party bringing the suit. Public funds may not be used to defend or reimburse officials who are found by the court to have violated this section.
(d) It shall be an affirmative defense to any claim brought against an elected county or municipal official under this subsection (5) that the elected official:
(i) Did not vote in the affirmative for the adopted ordinance or posted written notice deemed by the court to be in violation of this section;
(ii) Did attempt to take recorded action to cure the violation as noticed by the Attorney General in paragraph (b) of this subsection; or
(iii) Did attempt to take recorded action to rescind the ordinance or remove the posted written notice deemed by the court to be in violation of this section.
(6) No county or municipality or their officers or employees may participate in any program in which individuals are given a thing of value provided by another individual or other entity in exchange for surrendering a firearm to the county, municipality or other governmental body unless:
(a) The county or municipality has adopted an ordinance authorizing the participation of the county or municipality, or participation by an officer or employee of the county or municipality in such a program; and
(b) Any ordinance enacted pursuant to this section must require that any firearm received shall be offered for sale at auction as provided by Sections 19-3-85 and 21-39-21 to federally licensed firearms dealers, with the proceeds from such sale at auction reverting to the general operating fund of the county, municipality or other governmental body. Any firearm remaining in possession of the county, municipality or other governmental body after attempts to sell at auction may be disposed of in a manner that the body deems appropriate.
SECTION 99. Section 45-12-11, Mississippi Code of 1972, is amended as follows:
45-12-11. (1) A manufacturer, wholesale dealer, agent or any other person or entity who knowingly sells or offers to sell cigarettes, other than through retail sale, in violation of Section 45-12-5, shall be subject to a civil penalty not to exceed One Hundred Dollars ($100.00) for each pack of such cigarettes sold or offered for sale, provided that in no case shall the penalty against any such person or entity exceed One Hundred Thousand Dollars ($100,000.00) during any thirty-day period.
(2) A retail dealer who knowingly sells or offers to sell cigarettes in violation of Section 45-12-5 shall be subject to a civil penalty not to exceed One Hundred Dollars ($100.00) for each pack of such cigarettes sold or offered for sale, provided that in no case shall the penalty against any retail dealer exceed Twenty-five Thousand Dollars ($25,000.00) for sales or offers to sale during any thirty-day period.
(3) In addition to any penalty prescribed by law, any corporation, partnership, sole proprietor, limited partnership or association engaged in the manufacture of cigarettes that knowingly makes a false certification pursuant to Section 45-12-7 shall be subject to a civil penalty of at least Seventy-five Thousand Dollars ($75,000.00) and not to exceed Two Hundred Fifty Thousand Dollars ($250,000.00) for each such false certification.
(4) Any person violating any other provision in this section shall be liable for a civil penalty for a first offense not to exceed One Thousand Dollars ($1,000.00), and for a subsequent offense shall be liable for a civil penalty not to exceed Five Thousand Dollars ($5,000.00), for each such violation.
(5) Whenever any law enforcement personnel or duly authorized representative of the State Fire Marshal shall discover any cigarettes (a) for which no certification has been filed as required by Section 45-12-7, or (b) that have not been marked as required by Section 45-12-9, such personnel is hereby authorized and empowered to seize and take possession of such cigarettes. Cigarettes seized pursuant to this section shall be destroyed; provided, however, that prior to the destruction of any cigarette seized pursuant to these provisions, the true holder of the trademark rights in the cigarette brand shall be permitted to inspect the cigarette.
(6) In addition to any other remedy provided by law, the Attorney General may file an action, subject to the provisions of Sections 1 and 2 of this act, in the circuit court of the county in which such alleged violation of this chapter occurred, including petitioning (a) for preliminary or permanent injunctive relief against any manufacturer, importer, wholesale dealer, retail dealer, agent or any other person or entity to enjoin such entity from selling, offering to sell, or affixing tax stamps to any cigarette that does not comply with the requirements of this chapter, or (b) to recover any costs or damages suffered by the state because of a violation of this chapter, including enforcement costs relating to the specific violation and attorney's fees. Each violation of this chapter or of rules or regulations adopted under this chapter constitutes a separate civil violation for which the State Fire Marshal or Attorney General may obtain relief. Upon obtaining judgment for injunctive relief under this section, the State Fire Marshal or Attorney General shall provide a copy of the judgment to all wholesale dealers and agents to which the cigarette has been sold.
SECTION 100. Section 45-14-27, Mississippi Code of 1972, is amended as follows:
45-14-27. (1) Upon completion of any project or activity regarding emergency response to and coordination of decontamination of radiation accidents or perpetual maintenance and custody of radioactive materials, each agency of the state that has participated by furnishing personnel, equipment or material shall deliver to the agency record of the expenses incurred by that agency. The amount of incurred expenses shall be disbursed by the Secretary and Executive Officer of the State Board of Health to each agency from funds available therefor. Upon completion of such project or activity, the agency shall prepare a statement of all expenses and costs for the project or activity expended by the state and shall make demand for payment upon the person having control over the radioactive materials or the release thereof which necessitated said project or activity. Any person having control over the radioactive materials or the release thereof and any other person causing or contributing to an incident necessitating such project or activity stated in this subsection shall be directly liable to the state for the necessary expenses incurred thereby and the state shall have a cause of action to recover from any or all such persons. If the person having control over the radioactive materials or the release thereof shall fail or refuse to pay the sum expended by the state, the agency shall refer the matter to the Attorney General of Mississippi who shall institute an action, subject to the provisions of Sections 1 and 2 of this act, in the name of the state in the chancery court of the county in which the project or activity was undertaken by the state to recover such cost and expenses.
(2) In any action instituted by the Attorney General under this chapter, a verified and itemized statement of the expenses incurred by the state in any project or activity stated in subsection (1) of this section, shall be filed with the complaint and shall constitute a prima facie case, and the state shall be entitled to a judgment thereon in the absence of allegation and proof on the part of the defendant or defendants that:
(a) The statement of expenses incurred by the state is not correct because of an error in the calculation of the amount due; or
(b) The statement of the amount due is not correct because of an error in not properly crediting the account with any cash payment, or payments, or other satisfaction, which may have been made thereon.
SECTION 101. Section 47-5-75, Mississippi Code of 1972, is amended as follows:
47-5-75. The department is authorized to bring and maintain suits for the collection and enforcement of all demands and debts owing to the correctional system. No bond for costs, appeal bond, supersedeas bond or other security shall at any time be required of the department in any civil suit of any kind brought by or against it or its employees in their official capacity, except such suits as may be brought against it or them by the State of Mississippi. The Attorney General, subject to the provisions of Sections 1 and 2 of this act, of the State of Mississippi is hereby directed to assist the department in the filing and prosecution of any suits filed herein.
The department shall have the further power and authority, in its discretion, to take adequate liability insurance on the operation of said correctional system, including liability insurance to protect the commissioner and other regular employees of the correctional system from tort actions in any state or federal court.
SECTION 102. Section 47-5-901, Mississippi Code of 1972, is brought forward as follows:
47-5-901. (1) Any person committed, sentenced or otherwise placed under the custody of the Department of Corrections, on order of the sentencing court and subject to the other conditions of this subsection, may serve all or any part of his sentence in the county jail of the county wherein such person was convicted if the Commissioner of Corrections determines that physical space is not available for confinement of such person in the state correctional institutions. Such determination shall be promptly made by the Department of Corrections upon receipt of notice of the conviction of such person. The commissioner shall certify in writing that space is not available to the sheriff or other officer having custody of the person. Any person serving his sentence in a county jail shall be classified in accordance with Section 47-5-905.
(2) If state prisoners are housed in county jails due to a lack of capacity at state correctional institutions, the Department of Corrections shall determine the cost for food and medical attention for such prisoners. The cost of feeding and housing offenders confined in such county jails shall be based on actual costs or contract price per prisoner. In order to maximize the potential use of county jail space, the Department of Corrections is encouraged to negotiate a reasonable per day cost per prisoner, which in no event may exceed Twenty Dollars ($20.00) per day per offender.
(3) (a) Upon vouchers submitted by the board of supervisors of any county housing persons due to lack of space at state institutions, the Department of Corrections shall pay to such county, out of any available funds, the actual cost of food, or contract price per prisoner, not to exceed Twenty Dollars ($20.00) per day per offender, as determined under subsection (2) of this section for each day an offender is so confined beginning the day that the Department of Corrections receives a certified copy of the sentencing order and will terminate on the date on which the offender is released or otherwise removed from the custody of the county jail. The department, or its contracted medical provider, will pay to a provider of a medical service for any and all incarcerated persons from a correctional or detention facility an amount based upon negotiated fees as agreed to by the medical care service providers and the department and/or its contracted medical provider. In the absence of negotiated discounted fee schedule, medical care service providers will be paid by the department, or its contracted medical service provider, an amount no greater than the reimbursement rate applicable based on the Mississippi Medicaid reimbursement rate. The board of supervisors of any county shall not be liable for any cost associated with medical attention for prisoners who are pretrial detainees or for prisoners who have been convicted that exceeds the Mississippi Medicaid reimbursement rate or the reimbursement provided by the Department of Corrections, whichever is greater. This limitation applies to all medical care services, durable and nondurable goods, prescription drugs and medications. Such payment shall be placed in the county general fund and shall be expended only for food and medical attention for such persons.
(b) Upon vouchers submitted by the board of supervisors of any county housing offenders in county jails pending a probation or parole revocation hearing, the department shall pay the reimbursement costs provided in paragraph (a).
(c) If the probation or parole of an offender is revoked, the additional cost of housing the offender pending the revocation hearing shall be assessed as part of the offender's court cost and shall be remitted to the department.
(4) A person, on order of the sentencing court, may serve not more than twenty-four (24) months of his sentence in a county jail if the person is classified in accordance with Section 47-5-905 and the county jail is an approved county jail for housing state inmates under federal court order. The sheriff of the county shall have the right to petition the Commissioner of Corrections to remove the inmate from the county jail. The county shall be reimbursed in accordance with subsection (2) of this section.
(5) The Attorney General of the State of Mississippi shall defend the employees of the Department of Corrections and officials and employees of political subdivisions against any action brought by any person who was committed to a county jail under the provisions of this section.
(6) This section does not create in the Department of Corrections, or its employees or agents, any new liability, express or implied, nor shall it create in the Department of Corrections any administrative authority or responsibility for the construction, funding, administration or operation of county or other local jails or other places of confinement which are not staffed and operated on a full-time basis by the Department of Corrections. The correctional system under the jurisdiction of the Department of Corrections shall include only those facilities fully staffed by the Department of Corrections and operated by it on a full-time basis.
(7) An offender returned to a county for post-conviction proceedings shall be subject to the provisions of Section 99-19-42 and the county shall not receive the per-day allotment for such offender after the time prescribed for returning the offender to the Department of Corrections as provided in Section 99-19-42.
SECTION 103. Section 47-5-903, Mississippi Code of 1972, is brought forward as follows:
47-5-903. (1) A person committed, sentenced or otherwise placed under the custody of the Department of Corrections, on order of the sentencing court, may serve his sentence in the county jail of the county where convicted if all of the following conditions are complied with:
(a) The person must be classified in accordance with Section 47-5-905;
(b) The person must not be classified as in need of close supervision;
(c) The sheriff of the county where the person will serve his sentence must request in writing that the person be allowed to serve his sentence in that county jail;
(d) After the person is classified and returned to the county, the county shall assume the full and complete responsibility for the care and expenses of housing such person; and
(e) The county jail must be an approved county jail for housing state inmates under federal court order.
(2) This section does not apply to inmates housed in county jails due to lack of space at state correctional facilities. The department shall not reimburse the county for the expense of housing an inmate under this section.
(3) The Attorney General of the State of Mississippi shall defend the employees of the Department of Corrections and officials and employees of political subdivisions against any action brought by any person who was committed to a county jail under the provisions of this section.
(4) The state, the Department of Corrections, and its employees or agents, shall not be liable to any person or entity for an inmate held in a county jail under this section.
SECTION 104. Section 47-5-1219, Mississippi Code of 1972, is brought forward as follows:
47-5-1219. A contract for correctional services shall not be entered into unless the following requirements are met:
(a) In addition to fire and casualty insurance, the contractor provides at least Ten Million Dollars ($10,000,000.00) of liability insurance, specifically including insurance for civil rights claims. The liability insurance shall be issued by an insurance company with a rating of at least an A- according to A.M. Best standards. In determining the adequacy of such insurance, the Department of Finance and Administration shall determine whether:
(i) The insurance is adequate to protect the state from any and all actions by a third party against the contractor or the state as a result of the contract;
(ii) The insurance is adequate to protect the state against any and all claims arising as a result of any occurrence during the term of the contract;
(iii) The insurance is adequate to assure the contractor's ability to fulfill its contract with the state in all respects, and to assure that the contractor is not limited in this ability because of financial liability which results from judgments; and
(iv) The insurance is adequate to satisfy such other requirements specified by the independent risk management/actuarial firm.
(b) The sovereign immunity of the state shall not apply to the contractor. Neither the contractor nor the insurer of the contractor may plead the defense of sovereign immunity in any action arising out of the performance of the contract.
(c) The contractor shall post a performance bond to assure the contractor's faithful performance of the specifications and conditions of the contract. The bond is required throughout the term of the contract. The terms and conditions must be approved by the Department of Corrections and the Department of Finance and Administration and such approval is a condition precedent to the contract taking effect.
(d) The contractor shall defend any suit or claim brought against the State of Mississippi arising out of any act or omission in the operation of a private facility, and shall hold the State of Mississippi harmless from such claim or suit. The contractor shall be solely responsible for the payment of any legal or other costs relative to any such claim or suit. The contractor shall reimburse the State of Mississippi for any costs that it may incur as a result of such claim or suit immediately upon being submitted a statement therefor by the Attorney General.
The duties and obligations of the contractor pursuant to this subsection shall include, but not be limited to, any claim or suit brought under any federal or state civil rights or prisoners rights statutes or pursuant to any such rights recognized by common law or case law, or federal or state constitutions.
Any suit brought or claim made arising out of any act or omission in the operation of a private facility shall be made or brought against the contractor and not the State of Mississippi.
The Attorney General retains all rights and emoluments of his office which include direction and control over any litigation or claim involving the State of Mississippi.
SECTION 105. Section 49-4-21, Mississippi Code of 1972, is amended as follows:
49-4-21. The Attorney General shall be counsel and attorney for the commission and Department of Wildlife, Fisheries and Parks, subject to the provisions of Sections 1 and 2 of this act. The Attorney General shall designate one (1) of his deputies or assistants to be counsel and attorney for the commission and the department in all actions, proceedings and hearings. The deputy or assistant so designated shall be legal advisor of the commission and the department in all matters relating to the commission and the department and to the powers and duties of its officers.
SECTION 106. Section 49-17-71, Mississippi Code of 1972, is amended as follows:
49-17-71. The Governor, on behalf of this state, is hereby authorized to execute a compact, in substantially the following form, with any one or more of the States of Alabama, Georgia, Kentucky, North Carolina, Tennessee and Virginia, and the Legislature hereby signifies in advance its approval and ratification of such compact:
Article I
The purpose of this compact is to promote effective control and reduction of pollution in the waters of the Tennessee River Basin through increased co-operation of the states of the basin, co-ordination of pollution control activities and programs in the basin, and the establishment of a joint interstate commission to assist in these efforts.
Article II
The party states hereby create the "Tennessee River Basin Water Pollution Control Commission," hereinafter referred to as the "commission," which shall be an agency of each party state with the powers and duties set forth herein, and such others as shall be conferred upon it by the party states or by the Congress of the United States concurred in by the party states.
Article III
A. The party states hereby create the "Tennessee River Basin Water Pollution Control District," hereinafter called the "district," which consists of the area drained by the Tennessee River and its tributaries.
B. From time to time the commission may conduct surveys of the basin, study the pollution problems of the basin, and make comprehensive reports concerning the prevention or reduction of water pollution therein. The commission may draft and recommend to the parties hereto suggested legislation dealing with the pollution of waters within the basin or any portion thereof. Upon request of a state water pollution control agency, and in a manner agreed upon by such agency and the commission, the commission shall render advice concerning the various governments, communities, municipalities, persons, corporations or other entities with regard to particular problems connected with the pollution of waters. The commission shall present to the appropriate officials of any government or agency thereof its recommendations relating to enactments to be made by any legislature in furthering the intents and purposes of this article. The commission, upon request of a member state or upon its own instance may, after proper study, and after conducting public hearings, recommend minimum standards of water quality to be followed in the several areas of the district.
Article IV
The commission shall consist of three (3) commissioners from each state, each of whom shall be a resident voter of such state. The commissioners shall be chosen in the manner and for the terms provided by the laws of the state from which they are appointed, and each commissioner may be removed or suspended from office as provided by the law of the state from which he is appointed.
Article V
A. The commission shall elect annually from its members a chairman and a vice-chairman to serve at its pleasure. It shall adopt a seal and suitable by-laws for its management and control. The commission is hereby authorized to adopt, prescribe and promulgate rules and regulations for administering and enforcing all provisions of this compact. It may maintain one or more offices for the transaction of its business. Meetings shall be held at least once each year. It may determine duties, qualifications and compensation for and appoint such employees and consultants as may be necessary and remove or replace them.
B. The commission shall not compensate the commissioners for their services but shall pay their actual expenses incurred in and incidental to the performance of their duties.
C. The commission may acquire, by gift or otherwise, and may hold and dispose of such real and personal property as may be appropriate to the performance of its functions. In the event of sale of real property, proceeds may be distributed among the several party states, each state's share being computed in a ratio to its contributions; and in the event of dissolution of the commission, the property and assets shall be disposed of and proceeds distributed in a like manner.
D. Each commissioner shall have one vote. One or more commissioners from a majority of the party states shall constitute a quorum for the transaction of business, but no action of the commission imposing any obligation on any party state or any municipality, person, corporation or other entity therein shall be binding unless a majority of all of the members from such party state shall have voted in favor thereof. The commission shall keep accurate accounts of all receipts and disbursements, and shall submit to the governor and the legislature of each party state an annual report concerning its activities, and shall make recommendations for any legislative, executive or administrative action deemed advisable.
E. The commission shall at the proper time submit to the governor of each party state for his approval an estimate of its proposed expenditures. The commission shall subsequently adopt a budget and submit appropriation requests to the party states in accordance with the laws and procedures of such states.
F. The commission shall not pledge the credit of any of the party states. The commission may meet any of its obligations in whole or in part with funds available to it, from gifts, grants, appropriations or otherwise, provided that the commission takes specific action setting aside such funds prior to the incurring of any obligation to be met in whole or in part in this manner. Except where the commission makes use of funds already available to it, the commission shall not incur any obligations prior to the making of appropriations adequate to meet the same.
G. The accounts of the commission shall be open at any reasonable time to the inspection of such representatives of the respective party states as may be duly constituted for that purpose. All receipts and disbursements of funds handled by the commission shall be audited yearly by a qualified public accountant, and the report of the audit shall be included in and become a part of the annual report of the commission. The commission shall appoint an executive director. The commission shall also appoint a treasurer who may be a member of the commission. The executive director shall be custodian of the records of the commission with authority to attest to and certify such records and copies thereof under the seal of the commission. The commission shall require bonds of its executive director and treasurer in the amount of at least twenty-five per cent (25%) of the annual budget of the commission.
Article VI
Each of the commission's budgets of estimated expenditures shall contain specific recommendations of the amount or amounts to be appropriated by each of the party states. In determining these amounts, the commission shall prorate one half (1/2) of its budget among the several states in proportion to their land area within the district, and shall prorate the other half among the several states in proportion to their population within the district at the last preceding federal census.
Article VII
A. It is recognized, owing to such variable factors as location, size, character and flow and the many varied uses of the waters subject to the terms of this compact, that no single standard of sewage and waste treatment and no single standard of quality of receiving waters is practical and that the degree of treatment of sewage and industrial wastes should take into account the classification of the receiving waters according to present and proposed highest use, such as for drinking water supply, industrial and agricultural uses, bathing and other recreational purposes, maintenance and propagation of fish life, navigation and disposal of wastes.
B. The commission may establish reasonable physical, chemical and bacteriological standards of water quality satisfactory for various classifications of use. It is agreed that each of the signatory states through appropriate agencies will prepare a classification of its interstate waters in the district in entirety or by portions according to present and proposed highest use, and for this purpose technical experts employed by appropriate state water pollution control agencies are authorized to confer on questions relating to classification of interstate waters affecting two or more states. Each signatory state agrees to submit its classification of its interstate waters to the commission for approval. It is agreed that after such approval, all signatory states through their appropriate state water pollution control agencies will work to establish programs of treatment of sewage and industrial wastes which will meet standards established by the commission for classified waters. The commission may from time to time make such changes in definitions of classifications and in standards as may be required by changed conditions or as may be necessary for uniformity and in a manner similar to that in which these standards and classifications were originally established.
Article VIII
A. A state pollution control agency of any party state may certify to the commission an alleged violation of the commission's standards of quality of water entering said state. Upon such certification the commission may call a hearing at which the appropriate state pollution agencies shall be represented. If the commission finds a violation has occurred, is occurring or is likely to recur, it shall make recommendations as to the manner of abatement of the pollution to the appropriate water pollution control agency of the party state within which the violation has occurred, is occurring or is likely to recur. In the event that commission recommendations made pursuant to the preceding provisions of this article do not result in compliance within a reasonable time, the commission may, after such further investigation if any as is deemed necessary and proper and after a hearing held in the state where a violation occurs or has occurred, issue an order or orders upon any municipality, person, corporation or other entity within said party state violating provisions of this compact by discharging sewage or industrial wastes into the waters of the district which flow through, into or border upon any party state. Such order or orders may prescribe the date on or before which such discharge shall be wholly or partially discontinued, modified or treated or otherwise disposed of. The commission shall give reasonable and proper notice in writing of the time and place of the hearing to the municipality, person, corporation or other entity against which such order is proposed except that when the commission shall find that a public health emergency exists, it may issue such an order pending hearing. In all such instances, the hearing shall be promptly held and the order shall be withdrawn, modified or made permanent within thirty (30) days after hearing. No order prescribing the date on or before which such discharge shall be wholly or partially discontinued, modified or treated or otherwise disposed of shall go into effect upon a municipality, person, corporation or other entity in any state unless and until it receives the approval of a majority of the commissioners from each of not less than a majority of the party states, provided that such order receives the assent of not less than a majority of the commissioners from such state.
B. It shall be the duty of the municipality, person, corporation or other entity within a party state to comply with any such order against it or him by the commission, and any court of competent jurisdiction in any of the party states shall have jurisdiction, by mandamus, injunction, specific performance or other form of remedy, to enforce any such order against any municipality, person, corporation or other entity domiciled, located or doing business within such state; provided, however, such court may review the order and affirm, reverse or modify the same in any appropriate proceeding brought and upon any of the grounds customarily applicable in proceedings for court review of administrative decisions. The commission or, at its request, the Attorney General, subject to the provisions of Sections 1 and 2 of this act, or other law enforcing official of the appropriate state shall have power to institute in such court any action for the enforcement of such order.
Article IX
Nothing in this compact shall be construed to limit the powers of any party state, or to repeal or prevent the enactment of any legislation, or the enforcement of any requirement by any party state, imposing any additional conditions and restrictions to further reduce or prevent the pollution of waters within its jurisdiction.
Article X
A. Nothing contained in this compact shall be construed so as to conflict with any provision of the Ohio River Valley Water Sanitation Compact or to impose obligations on any party state inconsistent with those which it has undertaken or may undertake by virtue of its membership in said compact; provided that nothing contained in this article shall be deemed to limit the commission's power to set higher standards for the waters of the Tennessee River Basin Water Pollution Control District or any portion thereof than those required for the Ohio River Valley Water Sanitation District.
B. Nothing contained in this compact shall be deemed to give the commission any power or jurisdiction over any aspect of pollution abatement or control within the district unless existing or future pollution of such waters does or is likely to affect adversely the quality of water flowing among, between, into or through the territory of more than one party state.
Article XI
Any two (2) or more of the party states by legislative action may enter into supplementary agreements for further regulation and abatement of water pollution in other areas within the party states and for the establishment of common or joint services or facilities for such purpose and designate the commission to act as their joint agency in regard thereto. Except in those cases where all member states join in such supplementary agreement and designation, the representatives in the commission of any group of such designating states shall constitute a separate section of the commission for the performance of the function or functions so designated and with such voting rights for these purposes as may be stipulated in such agreement; provided that, if any additional expense is involved, the member states so acting shall appropriate the necessary funds for this purpose. No supplementary agreement shall be valid to the extent that it conflicts with the purposes of this compact and the creation of such a section as a joint agency shall not affect the privileges, powers, responsibilities or duties of the member states participating therein as embodied in the other articles of this compact.
Article XII
This compact shall enter into force and become effective and binding when it has been enacted by the legislature of Tennessee and by the legislatures of any one or more of the states of Alabama, Georgia, Kentucky, Mississippi, North Carolina and Virginia and upon approval by the Congress of the United States and thereafter shall enter into force and become effective and binding as to any other of said states when enacted by the legislature thereof.
Article XIII
This compact shall continue in force and remain binding upon each party state until renounced by act of the legislature of such state, in such form and manner as it may choose; provided that such renunciation shall not become effective until six (6) months after the effective date of the action taken by the legislature. Notice of such renunciation shall be given to the other party states by the secretary of state of the party state so renouncing upon passage of the act.
Article XIV
The provisions of this compact or of agreements thereunder shall be severable and if any phrase, clause, sentence or provision of this compact, or such agreement, is declared to be contrary to the constitution of any participating state or of the United States or the applicability thereof to any state, agency, person or circumstances is held invalid, the constitutionality of the remainder of this compact or of any agreement thereunder and the applicability thereof to any state, agency, person or circumstance shall not be affected thereby, provided further that if this compact or any agreement thereunder shall be held contrary to the Constitution of the United States or of any state participating therein, the compact or any agreement thereunder shall remain in full force and effect as to the remaining states and in full force and effect as to the state affected as to all severable matters. It is the legislative intent that the provisions of this compact shall be reasonably and liberally construed.
SECTION 107. Section 49-27-51, Mississippi Code of 1972, is amended as follows:
49-27-51. (1) (a) If a person in violation of this chapter submits a proper application for any unauthorized work and the commission determines that the work has been conducted in accordance with the public policy as set forth in Section 49-27-3, the commission shall issue after-the-fact authorization for the work.
(b) For conducting the work without first obtaining a current and valid permit and other violations of this chapter, the commission may order and levy a penalty of not less than Fifty Dollars ($50.00) nor more than Five Hundred Dollars ($500.00) per day for each day the violation has existed for residential type regulated activity and a penalty of not less than One Thousand Dollars ($1,000.00) nor more than Ten Thousand Dollars ($10,000.00) per day for each day the violation has existed for commercial and industrial type regulated activity.
(2) If the person continues the violation, the Attorney General of the State of Mississippi at the request of the commission subject to the provisions of Sections 1 and 2 of this act, a district attorney having jurisdiction, or a county attorney having jurisdiction may initiate the civil or criminal actions, or both civil and criminal actions, as described in this chapter against the person.
(3) The Attorney General subject to the provisions of Sections 1 and 2 of this act, commission, district attorney or county attorney may initiate action to enjoin any person in violation of this chapter.
SECTION 108. Section 53-3-19, Mississippi Code of 1972, is amended as follows:
53-3-19. Apart from, and in addition to, any other remedy or procedure which may be available to the State Oil and Gas Board, or any penalty which may be sought against or imposed upon any person with respect to violations relating to illegal oil, illegal gas, or illegal product, all illegal oil, illegal gas and illegal product shall, except under such circumstances as are stated herein, be contraband and shall be seized and sold, and the proceeds applied as herein provided. Such sale shall not take place unless the court shall find, in the proceeding provided for in this paragraph, that the commodity involved is contraband. Whenever the board believes that illegal oil, illegal gas or illegal product is subject to seizure and sale, as provided herein, it shall, through the Attorney General subject to the provisions of Sections 1 and 2 of this act, bring a civil action in rem for that purpose in the circuit court of the county where the commodity is found, or the action may be maintained in connection with any suit or cross-action for injunction or for penalty relating to any prohibited transaction involving such illegal oil, illegal gas or illegal product. Any interested person who may show himself to be adversely affected by any such seizure and sale shall have the right to intervene in such suit to protect his rights.
The action referred to above shall be strictly in rem and shall proceed in the name of the state as plaintiff against the illegal oil, illegal gas or illegal product mentioned in the complaint, as defendant, and no bond or bonds shall be required of the plaintiff in connection therewith. Upon the filing of the complaint, the clerk of the court shall issue a summons directed to the sheriff of the county, or to such officer or person as the court may authorize to serve process, requiring him to summon any and all persons (without undertaking to name them) who may be interested in the illegal oil, illegal gas, or illegal product mentioned in the complaint to appear and answer within thirty (30) days after the issuance and service of such summons. The summons shall contain the style and number of the suit and a very brief statement of the nature of the cause of action. It shall be served by posting one (1) copy thereof at the courthouse door of the county where the commodity involved in the suit is alleged to be located and by posting another copy thereof near the place where the commodity is alleged to be located. Copy of such summons shall be posted at least five (5) days before the return day stated therein, and the posting of such copy shall constitute constructive possession of such commodity by the state. A copy of the summons shall also be published once each week for three (3) weeks in some newspaper published in the county where the suit is pending or having a bona fide circulation therein. No judgment shall be pronounced by any court condemning such commodity as contraband until after the lapse of five (5) days from the last publication of said summons. Proof of service of said summons, and the manner thereof, shall be as provided by general law.
Where it appears by a verified pleading on the part of the plaintiff, or by affidavit, or affidavits, that grounds for the seizure and sale exist, the clerk, in addition to the summons, shall issue an order of seizure, which shall be signed by the clerk and bear the seal of the court. Such order of seizure shall specifically describe the illegal oil, illegal gas, or illegal product, so that the same may be identified with reasonable certainty. It shall direct the sheriff to whom it is addressed to take into his custody, actual or constructive, the illegal oil, illegal gas or illegal product, described therein, and to hold the same subject to the orders of the court. Said order of seizure shall be executed as a writ of attachment is executed. No bond shall be required before the issuance of such order of seizure, and the sheriff shall be responsible upon his official bond for the proper execution thereof. For his service hereunder, the sheriff shall receive a fee as in like cases of seizure of personal property and to be assessed as other cost in the cause.
Sales of illegal oil, illegal gas or illegal product, seized under the authority of this section, and notice of such sales, shall be in accordance with the laws of this state relating to the sale of personal property under execution. For his services hereunder the sheriff shall receive a fee and expenses in like sales of personal property to be paid out of the proceeds of the sale or sales to be fixed by the court ordering such sale.
The court may order that the commodity be sold in specified lots or portions, and at specified intervals, instead of being sold at one time. Title to the amount sold shall pass as of the date of the act which is found by the court to make the commodity contraband. The judgment shall provide for payment of the proceeds of the sale into the State Oil and Gas Fund, after first deducting the costs in connection with the proceedings and sale, and after paying to any royalty owner intervening as an interested party in the suit, the value of his interest in the said oil or gas, provided he has established his title to the said oil or gas royalty interest. The amount sold shall be treated as legal oil, legal gas or legal product, as the case may be, in the hands of the purchaser, but the purchaser and the commodity shall be subject to all applicable laws, and rules, regulations and orders with respect to further sale or purchase or acquisition, and with respect to the transportation, refining, processing, or handling in any other way, of the commodity purchased.
The producer, owner, or any other party contesting the validity of any such seizure and having an interest in securing the release of the seized oil, gas or other product, may obtain the release thereof upon furnishing a bond issued by a corporate surety company, duly qualified to do business in the state in an amount double the current market value of the oil, gas or other product held under seizure, which bond shall be conditioned and approved in the same manner as a replevin bond.
Nothing in this section shall deny or abridge any cause of action a royalty owner, or a lien holder, or any other claimant, may have, because of the forfeiture of the illegal oil, illegal gas, or illegal product, against the person whose act resulted in such forfeiture. All oil, gas or other illegal product sold as provided in this section shall be sold in like cases of personal property sold under execution.
SECTION 109. Section 53-9-67, Mississippi Code of 1972, is amended as follows:
53-9-67. (1) Except as provided in subsection (2) of this section, any interested party may commence a civil action to compel compliance with this chapter:
(a) Against the state or a state instrumentality or agency which is alleged to be in violation of this chapter or any rule, regulation, order or permit issued under this chapter, or against any other person who is alleged to be in violation of this chapter or any rule, regulation, order or permit issued under this chapter; or
(b) Against the department, commission or permit board if there is alleged a failure of any one or more of them to perform any nondiscretionary act or duty under this chapter.
(2) No action may be commenced:
(a) Under subsection (1)(a) of this section, (i) before sixty (60) days after the plaintiff has given notice in writing of the violation to the executive director, chief legal counsel of the department, the Attorney General subject to the provisions of Sections 1 and 2 of this act of the state and to any alleged violator, or (ii) if the commission has commenced and is diligently prosecuting a civil action in a court of the state or the United States to require compliance with this chapter, or any rule, regulation, order or permit issued under this chapter, but in any action any interested party may intervene as a matter of right;
(b) Under subsection (1)(b) of this section before sixty (60) days after the plaintiff has given notice in writing of the action to the executive director, chief legal counsel of the department and commission, in the manner as the commission shall by regulation prescribe. That action may be brought immediately after the notification if the violation or order complained of constitutes an imminent threat to the health or safety of the plaintiff or would immediately affect a legal interest of the plaintiff.
(3) (a) Any action under this section alleging a violation of this chapter or any rule or regulation promulgated under this chapter may be brought only in the chancery court of the judicial district in which the surface coal mining operation complained of is located, except any action brought under subsection (1)(b) of this section shall be brought in the chancery court of the First Judicial District of Hinds County.
(b) In any action under this section the permit board or commission, if not a party, may intervene as a matter of right.
(4) The court, in issuing a final order in any action brought under subsection (1) of this section, may award costs of litigation, including attorney and expert witness fees, to any party, whenever the court determines that award is appropriate, but the permittee shall not be entitled to an award of attorney's fees unless the court determines that the action of the person opposing the permittee was frivolous, unreasonable or without foundation. No award of attorney's fees or expert witness fees shall be made against a person having an interest in real property that is or may be adversely affected by the surface coal mining operations. The court may, if a preliminary injunction is sought, require the filing of a bond or equivalent security in accordance with state law.
(5) Nothing in this section shall restrict any right which any person or class of persons may have under any statute or the common law, to seek enforcement of this chapter and the rules and regulations promulgated under this chapter, or to seek any other relief, including relief against the department, commission or the permit board.
(6) Any provisions of this section and chapter regarding liability for the costs of clean-up, removal, remediation or abatement of any pollution, hazardous waste or solid waste shall be limited as provided in Section 49-17-42 and rules under that section.
SECTION 110. Section 55-13-21, Mississippi Code of 1972, is amended as follows:
55-13-21. The Highway Commission is hereby authorized to call upon the Attorney General, subject to the provisions of Sections 1 and 2 of this act, or any district attorney in his district, or any county attorney in his county, to assist in the preparation and trial of any condemnation suit for right-of-way for the Natchez Trace, and it is further authorized to pay the actual and necessary traveling expenses of any such officer assisting in any such suit.
SECTION 111. Section 57-1-29, Mississippi Code of 1972, is amended as follows:
57-1-29. A municipality, having been authorized by the executive director, as herein provided, may expend, for acquiring and operating such municipal enterprise under rules and regulations adopted by the executive director, any funds of the municipality then on hand or available and not already appropriated or necessary for other municipal purposes. A municipality, after the terms and conditions have been fixed by the executive director and with his approval, is hereby authorized from and after July 1, 1944, to issue bonds of such municipality for the purpose of effectuating the provisions of Sections 57-1-1 through 57-1-51 and promoting thereby the public policy of this state in bringing about the general welfare of its people. When, if and to the extent that a bond issue shall be approved by the executive director, then the same may be authorized by the governing authority of the municipality, and to secure such bond issue the municipality may mortgage or pledge property used and useful for the industrial enterprise; and the income therefrom, and confer upon the holders of such bonds the rights of a first mortgage bondholder. Such bond issue shall be first approved by the executive director, and thereafter shall be authorized by resolution or ordinance of the governing board of the municipality in such form and with such provisions, terms and conditions as may be fixed in the resolution or ordinance not inconsistent with the provisions of Sections 57-1-1 through 57-1-51. Present limitations on the amount of other bonds that may be issued by such municipality shall not apply to bonds issued hereunder other than as herein otherwise provided. All such bonds shall be lithographed or engraved, and printed in two (2) or more colors to prevent counterfeiting, and shall be in sums not less than One Thousand Dollars ($1,000.00) or multiples thereof, and shall be numbered in a regular series from one (1) upward, be executed by the manual or facsimile signature of the president of the board of supervisors and the clerk of such board; or by the mayor and clerk of the municipality, and either of such clerks shall impress the county or municipal seal, as the case may be, upon each bond as it is issued. At least one (1) signature on each bond shall be a manual signature, as specified in the issuing resolution. The coupons may bear only the facsimile signatures of such president and clerk of the board of supervisors or such mayor and clerk, as the case may be. Every such bond shall specify on its face the purpose for which it was issued, the total amount authorized to be issued, and each shall be made payable to bearer, and on request of any holder of such bonds the same may be registered as to principal by the clerk of the issuing board. The governing authorities shall annually levy a tax, or shall otherwise provide funds sufficient for paying interest on such bonds, and the bonds maturing within one (1) year and shall provide a sinking fund for the redemption of the bonds issued. Such bonds shall be issued maturing annually with all maturities not longer than twenty (20) years with not less than one-fiftieth (1/50) of the total issue to mature each year during the first five (5) years of the life of the bonds, and not less than one-twenty-fifth (1/25) of the total issue to mature annually during the succeeding ten-year period of the life of the bonds, and the remainder to be amortized, as to the principal and interest, into approximately equal payments, one (1) payment to mature during each year for the remaining life of the bonds. Such bonds shall not bear a greater overall maximum rate of interest than that allowed in Section 75-17-101, Mississippi Code of 1972. No bond shall bear more than one (1) rate of interest; each bond shall bear interest from its date to its stated maturity date at the interest rate specified in the bid; all bonds of the same maturity shall bear the same rate of interest from date to maturity; all interest accruing on such bonds so issued shall be payable semiannually or annually, except that the first interest coupon attached to any such bond may be for any period not exceeding one (1) year.
No interest payment shall be evidenced by more than one (1) coupon and neither cancelled nor supplemental coupons shall be permitted; the lowest interest rate specified for any bonds issued shall not be less than seventy percent (70%) of the highest interest rate specified for the same bond issue. The interest rate of any one (1) interest coupon shall not exceed the maximum interest rate allowed on such bonds.
Each interest rate specified in any bid must be in multiples of one-eighth of one percent (1/8 of 1%) or in multiples of one-tenth of one percent (1/10 of 1%).
The denomination, form and place of payment shall be fixed in the authorization therefor, and for the payment thereof the full faith, credit and resources of the municipality shall be pledged and a tax levied on all taxable property in the municipality, adequate to pay principal and interest on such bonds as the same fall due. Proceeds of such bonds shall be placed in the municipal treasury as a special fund and shall be used for no other purpose than the purpose set forth in the original resolution, and any officer diverting or assisting to divert any such fund to any other purpose than the purpose originally set forth in the resolution of the governing authority of the municipality shall be guilty of a misdemeanor, shall be punished accordingly, and shall also be liable both personally and on his official bond for such diversion, together with the costs of collection and reasonable attorney's fees. The Attorney General subject to the provisions of Sections 1 and 2 of this act is authorized to proceed by action for injunction or mandamus to require compliance with the original resolution by any officer or municipal board.
SECTION 112. Section 57-64-23, Mississippi Code of 1972, is brought forward as follows:
57-64-23. (1) In the event that an agreement made pursuant to this chapter shall deal in whole or in part with the provision of services or facilities with regard to which an officer, unit or agency of the state government has constitutional or statutory powers of control, the agreement shall, as a condition precedent to its being in force, be submitted to the state officer, unit or agency having such power of control and shall be approved or disapproved by him or it as to all matters within his or its jurisdiction in the same manner and subject to the same requirements governing action of the Attorney General pursuant to subsection (2) of this section.
(2) Every agreement made by a local government unit under this chapter shall, prior to and as a condition precedent to its entry into force, be submitted to the Attorney General of this state who shall determine whether the agreement is in proper form and compatible with the laws of this state. The Attorney General shall approve any such agreement submitted to him hereunder unless he shall find that it does not meet the conditions set forth herein and elsewhere in the laws of this state and shall detail in writing addressed to the governing bodies of the units concerned the specific respects in which the proposed agreement fails to meet the requirements of law.
Failure to disapprove an agreement submitted hereunder within sixty (60) days of its submission shall constitute approval thereof.
(3) Prior to its being in force, an agreement made pursuant to this chapter shall be filed with the chancery clerk of each of the counties wherein a participating local government unit is located and with the Secretary of State. The chancery clerk and the Secretary of State shall preserve such agreements as public records and index and docket the same separate and apart from all other records in his office.
SECTION 113. Section 63-17-85, Mississippi Code of 1972, is amended as follows:
63-17-85. The commission may deny an application for a license, or revoke or suspend a license after it has been granted, for any of the following reasons:
(a) On satisfactory proof of unfitness of the applicant or the licensee, as the case may be, under the standards established and set out in the Mississippi Motor Vehicle Commission Law.
(b) For fraud practiced or any material misstatement made by an applicant in any application for license under the provisions of Section 63-17-75.
(c) For any willful failure to comply with any provision of said law or with any rule or regulation promulgated by the commission under authority vested in it by said law.
(d) Change of condition after license is granted or failure to maintain the qualifications for license.
(e) Continued or flagrant violation of any of the provisions of said law or of any of the rules or regulations of the commission.
(f) For any willful violation of any law relating to the sale, distribution or financing of motor vehicles.
(g) Willfully defrauding any retail buyer to the buyer's damage.
(h) Willful failure to perform any written agreement with any retail buyer.
(i) Being a manufacturer who, for the protection of the buying public, fails to specify the delivery and preparation obligations of its motor vehicle dealers prior to delivery of new motor vehicles to retail buyers. A copy of the delivery and preparation obligations of its motor vehicle dealers and a schedule of the compensation to be paid to its motor vehicle dealers for the work and services they shall be required to perform in connection with such delivery and preparation obligations shall be filed with the commission by every licensed motor vehicle manufacturer and shall constitute any such dealer's only responsibility for product liability as between such dealer and such manufacturer. The compensation as set forth on said schedule shall be reasonable and the reasonableness thereof shall be subject to the approval of the commission. Any mechanical, body or parts defects arising from any express or implied warranties of any such manufacturer shall constitute such manufacturer's product or warranty liability.
(j) On satisfactory proof that any manufacturer, distributor, wholesaler, distributor branch or division, factory branch or division, or wholesaler branch or division has unfairly and without due regard to the equities of the parties or to the detriment of the public welfare failed to properly fulfill any warranty agreement or to adequately and fairly compensate any of its motor vehicle dealers for labor, parts and/or incidental expenses incurred by any such dealer with regard to factory warranty agreements performed by any such dealer. In no event shall any such manufacturer, distributor, wholesaler, distributor branch or division, factory branch or division, or wholesaler branch or division pay to any of its motor vehicle dealers a labor rate per hour for warranty work less than that charged by any such dealer to its retail customers. No such dealer shall charge to its manufacturer, distributor, wholesaler, distributor branch or division, factory branch or division, or wholesaler branch or division, a labor rate per hour in excess of the rate charged to its retail customers. All claims made by motor vehicle dealers hereunder for such labor, parts and/or incidental expenses shall be paid within thirty (30) days following their approval. All such claims shall be either approved or disapproved within thirty (30) days after their receipt, and when any such claim is disapproved the motor vehicle dealer who submits it shall be notified in writing of its disapproval within said period, and each such notice shall state the specific grounds upon which the disapproval is based.
(k) For the commission of any act prohibited by Sections 63-17-73 through 63-17-83 or the failure to perform any of the requirements of said sections.
If the commission finds, after notice and hearing in the manner provided for under the Mississippi Motor Vehicle Commission Law, that there is sufficient cause upon which to base the revocation of the license of any licensee involved in the hearing, the commission may in lieu of revoking such license assess a civil penalty against the guilty licensee not to exceed Ten Thousand Dollars ($10,000.00). If the commission finds, after such notice and hearing, that sufficient cause exists for the suspension only of the license of any licensee, the commission may in lieu of suspending such license assess a civil penalty against the guilty licensee of not less than Fifty Dollars ($50.00) nor more than Five Hundred Dollars ($500.00) per day for each day such license would otherwise be suspended. However, the amount of such penalty shall not exceed an aggregate of Seven Thousand Five Hundred Dollars ($7,500.00). Failure of the licensee to pay all penalties so assessed within the time allowed by the commission for the payment thereof, which time shall in no case exceed ninety (90) days from the date of the commission's order making such assessment, shall, unless an appeal is taken and perfected within the time and in the manner provided by the Mississippi Motor Vehicle Commission Law, result in an automatic revocation of such licensee's license. Any such penalties assessed by the commission remaining unpaid at the expiration of the time for payment may be recovered by an action in the name of the commission. All such actions shall be brought by the Attorney General, subject to the provisions of Sections 1 and 2 of this act, of the State of Mississippi upon the written request of the commission to do so, and shall be brought in the chancery court of the county or the chancery court of the judicial district of the county to which the commission's order making such assessment is appealable under the provisions of Section 63-17-99. All civil penalties assessed and collected by the commission under the authority of this subsection shall be deposited in the General Fund of the State Treasury.
SECTION 114. Section 63-21-39, Mississippi Code of 1972, is amended as follows:
63-21-39. (1) (a) An owner who scraps, dismantles or destroys a vehicle and a person who purchases a vehicle as scrap or to be dismantled or destroyed shall indicate same on the back of the certificate of title and shall immediately cause the certificate of title and any other documents required by the Department of Revenue to be mailed or delivered to the Department of Revenue for cancellation. A certificate of title of the vehicle shall not again be issued except upon application containing the information the Department of Revenue requires, accompanied by a certificate of inspection in the form and content specified in Section 63-21-15(5) and proof of payment of a fee as provided in subsection (2) of this section.
(b) Notwithstanding any other provision of this chapter to the contrary, if the owner or authorized agent of the owner has not obtained a title in his or her name for the vehicle to be transferred, has lost the title for the vehicle to be transferred, or has returned the title to the Department of Revenue in accordance with Section 63-21-39(1)(a), he or she may sign a statement swearing that, in addition to the foregoing conditions, the vehicle is at least ten (10) model years old. The statement described in this paragraph may be used only to transfer such a vehicle to a licensed used motor vehicle parts dealer or scrap metal processor. The department shall promulgate a form for the statement which shall include, but not be limited to:
(i) A statement that the vehicle shall never be titled again; it must be dismantled or scrapped;
(ii) A description of the vehicle including the year, make, model and vehicle identification number;
(iii) The name, address, and driver's license number of the owner;
(iv) A certification that the owner:
1. Never obtained a title to the vehicle in his or her name; or
2. Was issued a title for the vehicle, but the title was lost or stolen;
(v) A certification that the vehicle:
1. Is at least ten (10) model years old; and
2. Is not subject to any security interest or lien;
(vi) An acknowledgment that the owner and buyer of the vehicle realizes this form will be filed with the department and that:
1. It is a misdemeanor, punishable by a fine of not more than One Thousand Dollars ($1,000.00) or imprisonment for not more than six (6) months, or both, for conviction of a first offense of knowingly falsifying any information on this statement; and
2. It is a felony, punishable by a fine of not less than One Thousand Dollars ($1,000.00) nor more than Five Thousand Dollars ($5,000.00) or imprisonment for not less than one (1) year nor more than five (5) years, or both, for conviction of a second or subsequent offense of knowingly falsifying any information on this statement;
(vii) The owner's signature and the date of the transaction;
(viii) The name and address of the business acquiring the vehicle;
(ix) The National Motor Vehicle Title Information System identification number; and
(x) The business agent's signature and date along with a printed name and title if the agent is signing on behalf of a corporation.
(c) Until such time as the department makes available an Internet-based system, the used motor vehicle parts dealer or scrap metal processor shall mail or otherwise deliver the statement required under paragraph (b) of this subsection (1) to the Department of Revenue within three (3) business days of the completion of the transaction, requesting that the department cancel the Mississippi certificate of title and registration. Once the department develops an Internet-based system, the used motor vehicle parts dealer or scrap metal processor shall utilize such system and within two (2) business days electronically submit the information contained in the statement using that system.
(d) Within two (2) business days of each day's close of business, the used motor vehicle parts dealer or scrap metal processor who purchases or receives motor vehicles for scrap or for parts shall deliver in a format approved by the department, by electronic means once developed and made available by the department, a list of all such vehicles purchased that day for scrap or for parts. That list shall contain the following information:
(i) The name, address and contact information for the reporting entity;
(ii) The vehicle identification numbers of such vehicles;
(iii) The dates such vehicles were obtained;
(iv) The names of the individuals or entities from whom the vehicles were obtained, for use by law enforcement personnel and appropriate governmental agencies only;
(v) A statement of whether the vehicles were, or will be, crushed or disposed of, or offered for sale or other purposes;
(vi) A statement of whether the vehicle is intended for export out of the United States; and
(vii) The National Motor Vehicle Title Information System identification number of the business acquiring the vehicle.
(e) (i) For purposes of this subsection, the term "motor vehicle" shall not include a vehicle which has been crushed or flattened by mechanical means such that it is no longer the motor vehicle as described by the certificate of title, or such that the vehicle identification number is no longer visible or accessible.
(ii) In cases in which crushed or flattened vehicles are purchased or received, the purchasing or receiving used motor vehicle parts dealer or scrap metal processor shall verify that the seller has reported the vehicles in accordance with this subsection. Such verification may be in the form of a certification from the seller or a contract between the seller and the purchasing or receiving used motor vehicle parts dealer or scrap metal processor attesting to the seller's compliance with the reporting requirements of this subsection. Such verification must clearly identify the seller by a government issued photograph identification card or employer identification number, and the verification and copy of the identification card or number shall be maintained by the purchasing or receiving used motor vehicle parts dealer or scrap metal processor for a period of not less than two (2) years.
(f) The information obtained by the department in accordance with paragraph (d) of this subsection (1) shall be reported to the National Motor Vehicle Title Information System, in a format that will satisfy the requirement for reporting this information, in accordance with rules adopted by the United States Department of Justice in 28 C.F.R. 25.56.
(g) Until such time as the department develops and makes available the Internet-based system described in paragraph (d) of this subsection, the used motor vehicle parts dealer or scrap metal processor who purchases or receives motor vehicles for scrap or for parts shall deliver the information required by paragraph (d) to the National Motor Vehicle Title Information System through any data consolidator approved by such system, within forty-eight (48) hours of the day the vehicle was purchased or acquired by such used motor vehicle parts dealer or scrap metal processor which shall satisfy the requirements of paragraph (d).
(h) The information obtained by the department in accordance with paragraph (d) of this subsection (1) shall be made available only to law enforcement agencies and for purposes of canceling certificates of title. The information shall otherwise be considered to be confidential business information of the respective reporting entities.
(i) All records required under the provisions of this subsection shall be maintained for a period of two (2) years by the reporting entity and shall include a scanned or photocopied copy of the seller's or seller's representative's driver's license or state issued identification card.
(j) A person who knowingly and willfully violates this subsection (1), or any person who knowingly and willfully falsifies or assists another person in falsifying the statement or information required under paragraphs (b) or (d) of this subsection, or any person who knowingly and willfully sells a vehicle upon which there is an unsatisfied lien or security interest, or who purchases a vehicle without complying with either subsection (1)(a) or (1)(b) of this section and who knowingly and willfully destroys or dismantles a vehicle upon which he knows that there is an unsatisfied lien or security interest shall:
(i) Be guilty of a misdemeanor, punishable by a fine not more than One Thousand Dollars ($1,000.00) or imprisonment for not more than six (6) months, or both, for conviction of a first offense; or
(ii) Upon conviction of a second or subsequent offense, a felony, punishable by imprisonment for not less than one (1) year nor more than five (5) years or a fine of not less than One Thousand Dollars ($1,000.00) nor more than Five Thousand Dollars ($5,000.00), or both.
In addition, the court may order each person convicted to pay restitution to any party suffering monetary loss in the amount of such loss. No part of any sentence imposed by the court shall be suspended unless such restitution has been paid in full.
(k) A person who knowingly and willfully fails to deliver the title as required under paragraph (a) of this subsection, or the statement required under paragraph (b) of this subsection to the Department of Revenue within seventy-two (72) hours of the completion of the transaction, or who, until such time as the department develops and makes available the Internet-based system described in paragraph (d), fails to deliver the information required by paragraph (d) to the National Motor Vehicle Title Information System through any data consolidator approved by such system, within two (2) business days of the day the vehicle was purchased or acquired by such used motor vehicle parts dealer or scrap metal processor shall be in violation of this section, and subject to a civil penalty of up to One Thousand Dollars ($1,000.00) per violation. Actions to impose this penalty may be brought by any local or state law enforcement agency, district attorney, or by the Attorney General, subject to the provisions of Sections 1 and 2 of this act, in any court of competent jurisdiction. One-half (1/2) of the monies generated from such civil penalties shall be deposited in a special fund created in the State Treasury for use by the Department of Revenue's Title Bureau, and one-half (1/2) of the monies generated from such civil penalties shall be deposited in the general fund of the municipality if the suit was brought in a municipal court, or in the general fund of the county if the suit was brought in the court of a county.
(2) For the purpose of requesting a clear title or a branded title on a vehicle with a salvage certificate of title, every owner of a vehicle that has been issued a salvage certificate of title in this state or any other state which has been restored in this state to its operating condition which existed prior to the event which caused the salvage certificate of title to be issued shall make application to the Department of Revenue, accompanied by a certificate of inspection issued by the Department of Public Safety in the form and content specified in Section 63-21-15(5) and the payment of a fee of Seventy-five Dollars ($75.00) for each motor vehicle for which a certificate of inspection is issued. In addition, the Department of Public Safety may charge such a person a fee in the amount of Twenty-five Dollars ($25.00) for performing any vehicle identification number verification required by federal law or regulation for the vehicle for which the person is applying for a title. All such monies shall be collected by the Department of Public Safety and paid to the State Treasurer for deposit in a special fund that is hereby created in the State Treasury to be known as the "Salvage Certificate of Title Fund." Monies in the special fund may be expended by the Department of Public Safety, upon appropriation by the Legislature. The Department of Revenue shall establish by regulation the minimum requirements by which a vehicle which has been issued a salvage certificate of title may be issued a clear title.
(3) Before a clear title or a branded title may be issued for a vehicle for which a salvage certificate of title has been issued, the applicant shall submit, by hand delivery or mail, such documents and information to the Department of Public Safety as the department may require for the purpose of determining if the vehicle complies with the requirements of this section and all applicable regulations promulgated by the Commissioner of Public Safety and the Department of Revenue. The Department of Public Safety also may require that an applicant bring a vehicle for which application for a clear title or a branded title is being made to a Highway Patrol facility for a visual inspection whenever the department deems that a visual inspection is necessary or advisable. Nothing in this section shall be construed to prohibit inspectors of the Mississippi Highway Patrol from conducting on-site inspections and investigations of motor vehicle rebuilders or motor vehicle repair businesses to determine if such businesses are in compliance with all applicable laws relating to the motor vehicle title laws of this state and regulations promulgated by the Commissioner of Public Safety and the Department of Revenue.
SECTION 115. Section 67-1-89, Mississippi Code of 1972, is amended as follows:
67-1-89. In addition to any other rights and remedies which it may have, the commission, in the name of the chairman thereof, shall have the right to resort to and apply for injunctive relief, both temporary and permanent, in any court of competent jurisdiction to enforce compliance with the provisions of this chapter and to restrain and prevent violations and threatened violations thereof. The Attorney General, subject to the provisions of Sections 1 and 2 of this act, district attorneys and county attorneys of this state, shall aid and assist the commission in all such actions when requested by the chairman so to do.
SECTION 116. Section 69-2-15, Mississippi Code of 1972, is amended as follows:
69-2-15. (1) Any lender which has made a loan to a farmer to finance the nonland capital costs of establishing production of an emerging crop on land in Mississippi may make application to the department for payment of the interest on the loan during the period from beginning of production to harvest or initial sale of the product, which payment shall be made from the fund. The maximum amount of interest loans from the fund for the benefit of any one (1) farmer shall be Fifty Thousand Dollars ($50,000.00). During the period that the department pays the interest on a loan, the maximum rate of interest which may be charged on the loan by the lender shall be four percent (4%) per annum above the New York prime rate. By payment of the interest on a loan, neither the department nor the State of Mississippi shall be a guarantor of the loan, but the state shall have a lien junior to any lien that the lender may have on the loan.
(2) If a farmer defaults on the interest loan the Attorney General of the State of Mississippi shall take the necessary legal action, subject to the provisions of Sections 1 and 2 of this act, as soon as practicable, to recover the monies due and owing to the State of Mississippi. A suit against a defaulting party under this section may be brought in the county in which the lender is located, or in any Hinds County court.
SECTION 117. Section 69-23-11, Mississippi Code of 1972, is amended as follows:
69-23-11. (1) The commissioner or his employees, with proper identification and during normal working hours, shall have free access to all places of business, factories, buildings, carriages, cars, stores, warehouses and other places where pesticides are offered for sale or kept for sale or distribution or use and application, and shall have authority to inspect or open any container of pesticide and to take a sample for the purpose of examination and analysis. It shall be the duty of the commissioner to take such samples and deliver them to the State Chemist for examination and analysis.
(2) It shall be the duty of the State Chemist to cause as many analyses to be made of samples delivered to him by the commissioner as may be necessary to properly carry into effect the intent of this chapter. He shall make reports of such analysis to the commissioner and to the manufacturer, firm or person responsible for placing on the market the pesticide represented by the samples.
(3) If it appears that any pesticide fails to comply with the provisions of this chapter, or if provisions of this chapter are violated, the commissioner may proceed with appropriate action as provided in this chapter or under the administrative hearing procedures provided in Section 69-25-51 et seq. If, in the opinion of the commissioner, it appears that the provisions of the chapter have been violated, the commissioner may refer the facts to the county attorney, district attorney or Attorney General, subject to the provisions of Sections 1 and 2 of this act.
(4) It shall be the duty of each county attorney, district attorney or Attorney General to whom any such violation is reported to cause appropriate proceedings to be instituted and prosecuted in the appropriate court without delay.
(5) The commissioner shall, by publication in such manner as he may prescribe, give notice of all judgments entered in actions instituted under the authority of this chapter.
SECTION 118. Section 69-35-27, Mississippi Code of 1972, is amended as follows:
69-35-27. (1) In the event a majority of the bulk tank units eligible for participation in such referendum and voting therein shall vote in favor of such assessment, then the said assessment shall be collected monthly for the number of years set forth in the call for such referendum, and the collection of such assessment shall be under such method, rules and regulations as may be determined by the state ADA conducting the same; and the said assessment so collected shall be paid into the treasury of the state ADA to be used together with other funds from other sources. Funds to be collected pursuant to a referendum conducted under this act shall be withheld and paid by each handler, including producer handlers, to the state ADA by the last calendar day of the month succeeding the month in which the milk was received by the handler.
(2) In the event of a failure to pay part or all of an assessment levied pursuant to this act, the Attorney General, subject to the provisions of Sections 1 and 2 of this act of the state shall, upon the request of the state ADA, enforce the provisions of this act and collect such monies for payment to the state ADA. In the alternative to requesting the Attorney General to enforce the provisions of this act, the state ADA may bring a civil action to collect assessment from a handler failing to pay such assessments. A handler found to have failed to pay assessments pursuant to this act shall also be liable for reasonable attorney's fees and costs in the collection of such assessments.
SECTION 119. Section 71-5-17, Mississippi Code of 1972, is amended as follows:
71-5-17. (1) In any civil action to enforce the provisions of this chapter, the commission, the board of review, and the state may be represented by any qualified attorney who is employed by the commission and is designated by it for this purpose or, at the commission's request, by the Attorney General.
(2) All criminal actions for violation of any provision of this chapter, or of any rules and regulations issued pursuant thereto, shall be prosecuted by the Attorney General of the state subject to the provisions of Sections 1 and 2 of this act or, at his request and under his direction, by the prosecuting attorney of any county in which the employer has a place of business or the violator resides.
SECTION 120. Section 71-5-529, Mississippi Code of 1972, is brought forward as follows:
71-5-529. Any decision of the Board of Review, in the absence of an appeal therefrom as herein provided, shall become final ten (10) days after the date of notification; and judicial review thereof shall be permitted only after any party claiming to be aggrieved thereby has exhausted his administrative remedies as provided by this chapter. The department shall be deemed to be a party to any judicial action involving any such decision, and may be represented in any such judicial action by any qualified attorney employed by the department and designated by it for that purpose or, at the department's request, by the Attorney General.
SECTION 121. Section 73-6-29, Mississippi Code of 1972, is amended as follows:
73-6-29. Anyone failing to comply with the provisions of this chapter shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than Five Hundred Dollars ($500.00) nor more than Two Thousand Five Hundred Dollars ($2,500.00), and/or by imprisonment in the county jail for not less than thirty (30) days nor more than one (1) year.
All subsequent offenses shall be separate and distinct offenses, and punishable in like manner.
The State Board of Chiropractic Examiners or the district attorney or county attorney of the county in which the defendant may reside or the Attorney General of Mississippi may institute legal action subject to the provisions of Sections 1 and 2 of this act as provided by law against any person violating the provisions of this chapter, and the chancery court of the county in which any such violation occurred or in which any such person resides or practices shall have jurisdiction to grant injunctive relief against the continuation of any such violation.
SECTION 122. Section 73-15-35, Mississippi Code of 1972, is amended as follows:
73-15-35. The practice of nursing as a registered nurse or the practice of nursing as a licensed practical nurse by any person who has not been issued a license or who does not hold the privilege to practice under the provisions of this article, or whose license or privilege to practice has been suspended or revoked, or has expired and not been reinstated, or has negligently or willfully practiced nursing in a manner that fails to meet generally accepted standards of such nursing practice, is declared to be a danger to the public health and welfare and shall be enjoined through appropriate court action. In addition to and not in lieu of any other civil, criminal or disciplinary remedy, the Attorney General, subject to the provisions of Sections 1 and 2 of this act, the Board of Nursing or the prosecuting attorney of any county where a person is practicing or purporting to practice as a registered nurse or as a licensed practical nurse in violation of this article may, in accordance with the laws of this state governing injunctions, maintain an action to enjoin that person from practicing as a registered nurse or a licensed practical nurse until in compliance with this article. The court may issue a temporary injunction without notice or without bond enjoining a defendant from further practicing as a registered nurse or a licensed practical nurse. If it is established to the satisfaction of the court that the defendant has been or is practicing as a registered nurse or a licensed practical nurse without being licensed or privileged to practice and in good standing as provided herein, the court may enter a decree perpetually enjoining the defendant from such further activities, and a subsequent violation of which may be considered as contempt of court by any court of competent jurisdiction. Such injunction and contempt proceedings may be in addition to and not in lieu of any other penalties and remedies provided by this article.
SECTION 123. Section 73-25-101, Mississippi Code of 1972, is amended as follows:
73-25-101. The Interstate Medical Licensure Compact is enacted into law and entered into by this state with any and all states legally joining in the Compact in accordance with its terms, in the form substantially as follows:
INTERSTATE MEDICAL LICENSURE COMPACT
SECTION 1
Purpose
In order to strengthen access to health care, and in recognition of the advances in the delivery of health care, the member states of the Interstate Medical Licensure Compact have allied in common purpose to develop a comprehensive process that complements the existing licensing and regulatory authority of state medical boards, provides a streamlined process that allows physicians to become licensed in multiple states, thereby enhancing the portability of a medical license and ensuring the safety of patients. The Compact creates another pathway for licensure and does not otherwise change a state's existing Medical Practice Act. The Compact also adopts the prevailing standard for licensure and affirms that the practice of medicine occurs where the patient is located at the time of the physician-patient encounter, and therefore, requires the physician to be under the jurisdiction of the state medical board where the patient is located. State medical boards that participate in the Compact retain the jurisdiction to impose an adverse action against a license to practice medicine in that state issued to a physician through the procedures in the Compact.
SECTION 2
Definitions
In this Compact:
(a) "Bylaws" means those bylaws established by the Interstate Commission pursuant to Section 11 for its governance, or for directing and controlling its actions and conduct.
(b) "Commissioner" means the voting representative appointed by each member board pursuant to Section 11.
(c) "Conviction" means a finding by a court that an individual is guilty of a criminal offense through adjudication, or entry of a plea of guilt or no contest to the charge by the offender. Evidence of an entry of a conviction of a criminal offense by the court shall be considered final for purposes of disciplinary action by a member board.
(d) "Expedited license" means a full and unrestricted medical license granted by a member state to an eligible physician through the process set forth in the Compact.
(e) "Interstate Commission" means the interstate commission created pursuant to Section 11.
(f) "License" means authorization by a state for a physician to engage in the practice of medicine, which would be unlawful without the authorization.
(g) "Medical Practice Act" means laws and regulations governing the practice of allopathic and osteopathic medicine within a member state.
(h) "Member board" means a state agency in a member state that acts in the sovereign interests of the state by protecting the public through licensure, regulation, and education of physicians as directed by the state government.
(i) "Member state" means a state that has enacted the Compact.
(j) "Practice of medicine" means the clinical prevention, diagnosis, or treatment of human disease, injury, or condition requiring a physician to obtain and maintain a license in compliance with the Medical Practice Act of a member state.
(k) "Physician" means any person who:
(1) Is a graduate of a medical school accredited by the Liaison Committee on Medical Education, the Commission on Osteopathic College Accreditation, or a medical school listed in the International Medical Education Directory or its equivalent;
(2) Passed each component of the United States Medical Licensing Examination (USMLE) or the Comprehensive Osteopathic Medical Licensing Examination (COMLEX-USA) within three (3) attempts, or any of its predecessor examinations accepted by a state medical board as an equivalent examination for licensure purposes;
(3) Successfully completed graduate medical education approved by the Accreditation Council for Graduate Medical Education or the American Osteopathic Association;
(4) Holds specialty certification or a time-unlimited specialty certificate recognized by the American Board of Medical Specialties or the American Osteopathic Association's Bureau of Osteopathic Specialists;
(5) Possesses a full and unrestricted license to engage in the practice of medicine issued by a member board;
(6) Has never been convicted, received adjudication, deferred adjudication, community supervision, or deferred disposition for any offense by a court of appropriate jurisdiction;
(7) Has never held a license authorizing the practice of medicine subjected to discipline by a licensing agency in any state, federal, or foreign jurisdiction, excluding any action related to nonpayment of fees related to a license;
(8) Has never had a controlled substance license or permit suspended or revoked by a state or the United States Drug Enforcement Administration; and
(9) Is not under active investigation by a licensing agency or law enforcement authority in any state, federal, or foreign jurisdiction.
(l) "Offense" means a felony, gross misdemeanor, or crime of moral turpitude.
(m) "Rule" means a written statement by the Interstate Commission promulgated pursuant to Section 12 of the Compact that is of general applicability, implements, interprets, or prescribes a policy or provision of the Compact, or an organizational, procedural, or practice requirement of the Interstate Commission, and has the force and effect of statutory law in a member state, and includes the amendment, repeal, or suspension of an existing rule.
(n) "State" means any state, commonwealth, district, or territory of the United States.
(o) "State of principal license" means a member state where a physician holds a license to practice medicine and which has been designated as such by the physician for purposes of registration and participation in the Compact.
SECTION 3
Eligibility
(a) A physician must meet the eligibility requirements as defined in Section 2(k) to receive an expedited license under the terms and provisions of the Compact.
(b) A physician who does not meet the requirements of Section 2(k) may obtain a license to practice medicine in a member state if the individual complies with all laws and requirements, other than the Compact, relating to the issuance of a license to practice medicine in that state.
SECTION 4
Designation of State of Principal License
(a) A physician shall designate a member state as the state of principal license for purposes of registration for expedited licensure through the Compact if the physician possesses a full and unrestricted license to practice medicine in that state, and the state is:
(1) The state of primary residence for the physician, or
(2) The state where at least twenty-five percent (25%) of the practice of medicine occurs, or
(3) The location of the physician's employer, or
(4) If no state qualifies under subsection (1), subsection (2), or subsection (3), the state designated as state of residence for purpose of federal income tax.
(b) A physician may redesignate a member state as state of principal license at any time, as long as the state meets the requirements in subsection (a).
(c) The Interstate Commission is authorized to develop rules to facilitate redesignation of another member state as the state of principal license.
SECTION 5
Application and Issuance of Expedited Licensure
(a) A physician seeking licensure through the Compact shall file an application for an expedited license with the member board of the state selected by the physician as the state of principal license.
(b) Upon receipt of an application for an expedited license, the member board within the state selected as the state of principal license shall evaluate whether the physician is eligible for expedited licensure and issue a letter of qualification, verifying or denying the physician's eligibility, to the Interstate Commission.
(i) Static qualifications, which include verification of medical education, graduate medical education, results of any medical or licensing examination, and other qualifications as determined by the Interstate Commission through rule, shall not be subject to additional primary source verification where already primary source verified by the state of principal license.
(ii) The member board within the state selected as the state of principal license shall, in the course of verifying eligibility, perform a criminal background check of an applicant, including the use of the results of fingerprint or other biometric data checks compliant with the requirements of the Federal Bureau of Investigation, with the exception of federal employees who have suitability determination in accordance with United States Code of Federal Regulation Section 731.202.
(iii) Appeal on the determination of eligibility shall be made to the member state where the application was filed and shall be subject to the law of that state.
(c) Upon verification in subsection (b), physicians eligible for an expedited license shall complete the registration process established by the Interstate Commission to receive a license in a member state selected pursuant to subsection (a), including the payment of any applicable fees.
(d) After receiving verification of eligibility under subsection (b) and any fees under subsection (c), a member board shall issue an expedited license to the physician. This license shall authorize the physician to practice medicine in the issuing state consistent with the Medical Practice Act and all applicable laws and regulations of the issuing member board and member state.
(e) An expedited license shall be valid for a period consistent with the licensure period in the member state and in the same manner as required for other physicians holding a full and unrestricted license within the member state.
(f) An expedited license obtained though the Compact shall be terminated if a physician fails to maintain a license in the state of principal licensure for a nondisciplinary reason, without redesignation of a new state of principal licensure.
(g) The Interstate Commission is authorized to develop rules regarding the application process, including payment of any applicable fees, and the issuance of an expedited license.
SECTION 6
Fees for Expedited Licensure
(a) A member state issuing an expedited license authorizing the practice of medicine in that state may impose a fee for a license issued or renewed through the Compact.
(b) The Interstate Commission is authorized to develop rules regarding fees for expedited licenses.
SECTION 7
Renewal and Continued Participation
(a) A physician seeking to renew an expedited license granted in a member state shall complete a renewal process with the Interstate Commission if the physician:
(1) Maintains a full and unrestricted license in a state of principal license;
(2) Has not been convicted, received adjudication, deferred adjudication, community supervision, or deferred disposition for any offense by a court of appropriate jurisdiction;
(3) Has not had a license authorizing the practice of medicine subject to discipline by a licensing agency in any state, federal, or foreign jurisdiction, excluding any action related to nonpayment of fees related to a license; and
(4) Has not had a controlled substance license or permit suspended or revoked by a state or the United States Drug Enforcement Administration.
(b) Physicians shall comply with all continuing professional development or continuing medical education requirements for renewal of a license issued by a member state.
(c) The Interstate Commission shall collect any renewal fees charged for the renewal of a license and distribute the fees to the applicable member board.
(d) Upon receipt of any renewal fees collected in subsection (c), a member board shall renew the physician's license.
(e) Physician information collected by the Interstate Commission during the renewal process will be distributed to all member boards.
(f) The Interstate Commission is authorized to develop rules to address renewal of licenses obtained through the Compact.
SECTION 8
Coordinated Information System
(a) The Interstate Commission shall establish a database of all physicians licensed, or who have applied for licensure, under Section 5.
(b) Notwithstanding any other provision of law, member boards shall report to the Interstate Commission any public action or complaints against a licensed physician who has applied or received an expedited license through the Compact.
(c) Member boards shall report disciplinary or investigatory information determined as necessary and proper by rule of the Interstate Commission.
(d) Member boards may report any nonpublic complaint, disciplinary, or investigatory information not required by subsection (c) to the Interstate Commission.
(e) Member boards shall share complaint or disciplinary information about a physician upon request of another member board.
(f) All information provided to the Interstate Commission or distributed by member boards shall be confidential, filed under seal, and used only for investigatory or disciplinary matters.
(g) The Interstate Commission is authorized to develop rules for mandated or discretionary sharing of information by member boards.
SECTION 9
Joint Investigations
(a) Licensure and disciplinary records of physicians are deemed investigative.
(b) In addition to the authority granted to a member board by its respective Medical Practice Act or other applicable state law, a member board may participate with other member boards in joint investigations of physicians licensed by the member boards.
(c) A subpoena issued by a member state shall be enforceable in other member states.
(d) Member boards may share any investigative, litigation, or compliance materials in furtherance of any joint or individual investigation initiated under the Compact.
(e) Any member state may investigate actual or alleged violations of the statutes authorizing the practice of medicine in any other member state in which a physician holds a license to practice medicine.
SECTION 10
Disciplinary Actions
(a) Any disciplinary action taken by any member board against a physician licensed through the Compact shall be deemed unprofessional conduct which may be subject to discipline by other member boards, in addition to any violation of the Medical Practice Act or regulations in that state.
(b) If a license granted to a physician by the member board in the state of principal license is revoked, surrendered or relinquished in lieu of discipline, or suspended, then all licenses issued to the physician by member boards shall automatically be placed, without further action necessary by any member board, on the same status. If the member board in the state of principal license subsequently reinstates the physician's license, a license issued to the physician by any other member board shall remain encumbered until that respective member board takes action to reinstate the license in a manner consistent with the Medical Practice Act of that state.
(c) If disciplinary action is taken against a physician by a member board not in the state of principal license, any other member board may deem the action conclusive as to matter of law and fact decided, and:
(i) Impose the same or lesser sanction(s) against the physician so long as such sanctions are consistent with the Medical Practice Act of that state; or
(ii) Pursue separate disciplinary action against the physician under its respective Medical Practice Act, regardless of the action taken in other member states.
(d) If a license granted to a physician by a member board is revoked, surrendered or relinquished in lieu of discipline, or suspended, then any license(s) issued to the physician by any other member board(s) shall be suspended, automatically and immediately without further action necessary by the other member board(s), for ninety (90) days upon entry of the order by the disciplining board, to permit the member board(s) to investigate the basis for the action under the Medical Practice Act of that state. A member board may terminate the automatic suspension of the license it issued prior to the completion of the ninety (90) day suspension period in a manner consistent with the Medical Practice Act of that state.
SECTION 11
Interstate Medical Licensure Compact Commission
(a) The member states create the "Interstate Medical Licensure Compact Commission."
(b) The purpose of the Interstate Commission is the administration of the Interstate Medical Licensure Compact, which is a discretionary state function.
(c) The Interstate Commission shall be a body corporate and joint agency of the member states and shall have all the responsibilities, powers, and duties set forth in the Compact, and such additional powers as may be conferred upon it by a subsequent concurrent action of the respective legislatures of the member states in accordance with the terms of the Compact.
(d) The Interstate Commission shall consist of two (2) voting representatives appointed by each member state who shall serve as Commissioners. In states where allopathic and osteopathic physicians are regulated by separate member boards, or if the licensing and disciplinary authority is split between multiple member boards within a member state, the member state shall appoint one (1) representative from each member board. A Commissioner shall be a(n):
(1) Allopathic or osteopathic physician appointed to a member board;
(2) Executive director, executive secretary, or similar executive of a member board; or
(3) Member of the public appointed to a member board.
(e) The Interstate Commission shall meet at least once each calendar year. A portion of this meeting shall be a business meeting to address such matters as may properly come before the Commission, including the election of officers. The chairperson may call additional meetings and shall call for a meeting upon the request of a majority of the member states.
(f) The bylaws may provide for meetings of the Interstate Commission to be conducted by telecommunication or electronic communication.
(g) Each Commissioner participating at a meeting of the Interstate Commission is entitled to one (1) vote. A majority of Commissioners shall constitute a quorum for the transaction of business, unless a larger quorum is required by the bylaws of the Interstate Commission. A Commissioner shall not delegate a vote to another Commissioner. In the absence of its Commissioner, a member state may delegate voting authority for a specified meeting to another person from that state who shall meet the requirements of subsection (d).
(h) The Interstate Commission shall provide public notice of all meetings and all meetings shall be open to the public. The Interstate Commission may close a meeting, in full or in portion, where it determines by a two-thirds (2/3) vote of the Commissioners present that an open meeting would be likely to:
(1) Relate solely to the internal personnel practices and procedures of the Interstate Commission;
(2) Discuss matters specifically exempted from disclosure by federal statute;
(3) Discuss trade secrets, commercial, or financial information that is privileged or confidential;
(4) Involve accusing a person of a crime, or formally censuring a person;
(5) Discuss information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;
(6) Discuss investigative records compiled for law enforcement purposes; or
(7) Specifically relate to the participation in a civil action or other legal proceeding.
(i) The Interstate Commission shall keep minutes which shall fully describe all matters discussed in a meeting and shall provide a full and accurate summary of actions taken, including record of any roll call votes.
(j) The Interstate Commission shall make its information and official records, to the extent not otherwise designated in the Compact or by its rules, available to the public for inspection.
(k) The Interstate Commission shall establish an executive committee, which shall include officers, members, and others as determined by the bylaws. The executive committee shall have the power to act on behalf of the Interstate Commission, with the exception of rulemaking, during periods when the Interstate Commission is not in session. When acting on behalf of the Interstate Commission, the executive committee shall oversee the administration of the Compact including enforcement and compliance with the provisions of the Compact, its bylaws and rules, and other such duties as necessary.
(l) The Interstate Commission may establish other committees for governance and administration of the Compact.
SECTION 12
Powers and Duties of the Interstate Commission
The Interstate Commission shall have the duty and power to:
(a) Oversee and maintain the administration of the Compact;
(b) Promulgate rules which shall be binding to the extent and in the manner provided for in the Compact;
(c) Issue, upon the request of a member state or member board, advisory opinions concerning the meaning or interpretation of the Compact, its bylaws, rules, and actions;
(d) Enforce compliance with Compact provisions, the rules promulgated by the Interstate Commission, and the bylaws, using all necessary and proper means, including but not limited to the use of judicial process;
(e) Establish and appoint committees, including but not limited to an executive committee as required by Section 11, which shall have the power to act on behalf of the Interstate Commission in carrying out its powers and duties;
(f) Pay, or provide for the payment of the expenses related to the establishment, organization, and ongoing activities of the Interstate Commission;
(g) Establish and maintain one or more offices;
(h) Borrow, accept, hire, or contract for services of personnel;
(i) Purchase and maintain insurance and bonds;
(j) Employ an executive director who shall have such powers to employ, select or appoint employees, agents, or consultants, and to determine their qualifications, define their duties, and fix their compensation;
(k) Establish personnel policies and programs relating to conflicts of interest, rates of compensation, and qualifications of personnel;
(l) Accept donations and grants of money, equipment, supplies, materials and services, and to receive, utilize, and dispose of it in a manner consistent with the conflict of interest policies established by the Interstate Commission;
(m) Lease, purchase, accept contributions or donations of, or otherwise to own, hold, improve or use, any property, real, personal, or mixed;
(n) Sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose of any property, real, personal, or mixed;
(o) Establish a budget and make expenditures;
(p) Adopt a seal and bylaws governing the management and operation of the Interstate Commission;
(q) Report annually to the legislatures and governors of the member states concerning the activities of the Interstate Commission during the preceding year. Such reports shall also include reports of financial audits and any recommendations that may have been adopted by the Interstate Commission;
(r) Coordinate education, training, and public awareness regarding the Compact, its implementation, and its operation;
(s) Maintain records in accordance with the bylaws;
(t) Seek and obtain trademarks, copyrights, and patents; and
(u) Perform such functions as may be necessary or appropriate to achieve the purposes of the Compact.
SECTION 13
Finance Powers
(a) The Interstate Commission may levy on and collect an annual assessment from each member state to cover the cost of the operations and activities of the Interstate Commission and its staff. The total assessment must be sufficient to cover the annual budget approved each year for which revenue is not provided by other sources. The aggregate annual assessment amount shall be allocated upon a formula to be determined by the Interstate Commission, which shall promulgate a rule binding upon all member states.
(b) The Interstate Commission shall not incur obligations of any kind prior to securing the funds adequate to meet the same.
(c) The Interstate Commission shall not pledge the credit of any of the member states, except by, and with the authority of, the member state.
(d) The Interstate Commission shall be subject to a yearly financial audit conducted by a certified or licensed public accountant and the report of the audit shall be included in the annual report of the Interstate Commission.
SECTION 14
Organization and Operation of the Interstate Commission
(a) The Interstate Commission shall, by a majority of Commissioners present and voting, adopt bylaws to govern its conduct as may be necessary or appropriate to carry out the purposes of the Compact within twelve (12) months of the first Interstate Commission meeting.
(b) The Interstate Commission shall elect or appoint annually from among its Commissioners a chairperson, a vice chairperson, and a treasurer, each of whom shall have such authority and duties as may be specified in the bylaws. The chairperson, or in the chairperson's absence or disability, the vice chairperson, shall preside at all meetings of the Interstate Commission.
(c) Officers selected in subsection (b) shall serve without remuneration from the Interstate Commission.
(d) The officers and employees of the Interstate Commission shall be immune from suit and liability, either personally or in their official capacity, for a claim for damage to or loss of property or personal injury or other civil liability caused or arising out of, or relating to, an actual or alleged act, error, or omission that occurred, or that such person had a reasonable basis for believing occurred, within the scope of Interstate Commission employment, duties, or responsibilities; provided that such person shall not be protected from suit or liability for damage, loss, injury, or liability caused by the intentional or willful and wanton misconduct of such person.
(1) The liability of the executive director and employees of the Interstate Commission or representatives of the Interstate Commission, acting within the scope of such person's employment or duties for acts, errors, or omissions occurring within such person’s state, may not exceed the limits of liability set forth under the constitution and laws of that state for state officials, employees, and agents. The Interstate Commission is considered to be an instrumentality of the states for the purposes of any such action. Nothing in this subsection shall be construed to protect such person from suit or liability for damage, loss, injury, or liability caused by the intentional or willful and wanton misconduct of such person.
(2) The Interstate Commission shall defend the executive director, its employees, and subject to the approval of the Attorney General or other appropriate legal counsel of the member state represented by an Interstate Commission representative, shall defend such Interstate Commission representative in any civil action, except that any civil action initiated by the Attorney General shall be governed by Sections 1 and 2 of this act, seeking to impose liability arising out of an actual or alleged act, error or omission that occurred within the scope of Interstate Commission employment, duties or responsibilities, or that the defendant had a reasonable basis for believing occurred within the scope of Interstate Commission employment, duties, or responsibilities, provided that the actual or alleged act, error, or omission did not result from intentional or willful and wanton misconduct on the part of such person.
(3) To the extent not covered by the state involved, member state, or the Interstate Commission, the representatives or employees of the Interstate Commission shall be held harmless in the amount of a settlement or judgment, including attorney's fees and costs, obtained against such persons arising out of an actual or alleged act, error, or omission that occurred within the scope of Interstate Commission employment, duties, or responsibilities, or that such persons had a reasonable basis for believing occurred within the scope of Interstate Commission employment, duties, or responsibilities, provided that the actual or alleged act, error, or omission did not result from intentional or willful and wanton misconduct on the part of such persons.
SECTION 15
Rulemaking Functions of the Interstate Commission
(a) The Interstate Commission shall promulgate reasonable rules in order to effectively and efficiently achieve the purposes of the Compact. Notwithstanding the foregoing, in the event the Interstate Commission exercises its rulemaking authority in a manner that is beyond the scope of the purposes of the Compact, or the powers granted hereunder, then such an action by the Interstate Commission shall be invalid and have no force or effect.
(b) Rules deemed appropriate for the operations of the Interstate Commission shall be made pursuant to a rulemaking process that substantially conforms to the "Model State Administrative Procedure Act" of 2010, and subsequent amendments thereto.
(c) Not later than thirty (30) days after a rule is promulgated, any person may file a petition for judicial review of the rule in the United States District Court for the District of Columbia or the federal district where the Interstate Commission has its principal offices, provided that the filing of such a petition shall not stay or otherwise prevent the rule from becoming effective unless the court finds that the petitioner has a substantial likelihood of success. The court shall give deference to the actions of the Interstate Commission consistent with applicable law and shall not find the rule to be unlawful if the rule represents a reasonable exercise of the authority granted to the Interstate Commission.
SECTION 16
Oversight of Interstate Compact
(a) The executive, legislative, and judicial branches of state government in each member state shall enforce the Compact and shall take all actions necessary and appropriate to effectuate the Compact's purposes and intent. The provisions of the Compact and the rules promulgated hereunder shall have standing as statutory law but shall not override existing state authority to regulate the practice of medicine.
(b) All courts shall take judicial notice of the Compact and the rules in any judicial or administrative proceeding in a member state pertaining to the subject matter of the Compact which may affect the powers, responsibilities or actions of the Interstate Commission.
(c) The Interstate Commission shall be entitled to receive all service of process in any such proceeding, and shall have standing to intervene in the proceeding for all purposes. Failure to provide service of process to the Interstate Commission shall render a judgment or order void as to the Interstate Commission, the Compact, or promulgated rules.
SECTION 17
Enforcement of Interstate Compact
(a) The Interstate Commission, in the reasonable exercise of its discretion, shall enforce the provisions and rules of the Compact.
(b) The Interstate Commission may, by majority vote of the Commissioners, initiate legal action in the United States District Court for the District of Columbia, or, at the discretion of the Interstate Commission, in the federal district where the Interstate Commission has its principal offices, to enforce compliance with the provisions of the Compact, and its promulgated rules and bylaws, against a member state in default. The relief sought may include both injunctive relief and damages. In the event judicial enforcement is necessary, the prevailing party shall be awarded all costs of such litigation including reasonable attorney's fees.
(c) The remedies herein shall not be the exclusive remedies of the Interstate Commission. The Interstate Commission may avail itself of any other remedies available under state law or the regulation of a profession.
SECTION 18
Default Procedures
(a) The grounds for default include, but are not limited to, failure of a member state to perform such obligations or responsibilities imposed upon it by the Compact, or the rules and bylaws of the Interstate Commission promulgated under the Compact.
(b) If the Interstate Commission determines that a member state has defaulted in the performance of its obligations or responsibilities under the Compact, or the bylaws or promulgated rules, the Interstate Commission shall:
(1) Provide written notice to the defaulting state and other member states, of the nature of the default, the means of curing the default, and any action taken by the Interstate Commission. The Interstate Commission shall specify the conditions by which the defaulting state must cure its default; and
(2) Provide remedial training and specific technical assistance regarding the default.
(c) If the defaulting state fails to cure the default, the defaulting state shall be terminated from the Compact upon an affirmative vote of a majority of the Commissioners and all rights, privileges, and benefits conferred by the Compact shall terminate on the effective date of termination. A cure of the default does not relieve the offending state of obligations or liabilities incurred during the period of the default.
(d) Termination of membership in the Compact shall be imposed only after all other means of securing compliance have been exhausted. Notice of intent to terminate shall be given by the Interstate Commission to the Governor, the majority and minority leaders of the defaulting state's legislature, and each of the member states.
(e) The Interstate Commission shall establish rules and procedures to address licenses and physicians that are materially impacted by the termination of a member state, or the withdrawal of a member state.
(f) The member state which has been terminated is responsible for all dues, obligations, and liabilities incurred through the effective date of termination including obligations, the performance of which extends beyond the effective date of termination.
(g) The Interstate Commission shall not bear any costs relating to any state that has been found to be in default or which has been terminated from the Compact, unless otherwise mutually agreed upon in writing between the Interstate Commission and the defaulting state.
(h) The defaulting state may appeal the action of the Interstate Commission by petitioning the United States District Court for the District of Columbia or the federal district where the Interstate Commission has its principal offices. The prevailing party shall be awarded all costs of such litigation including reasonable attorney's fees.
SECTION 19
Dispute Resolution
(a) The Interstate Commission shall attempt, upon the request of a member state, to resolve disputes which are subject to the Compact and which may arise among member states or member boards.
(b) The Interstate Commission shall promulgate rules providing for both mediation and binding dispute resolution as appropriate.
SECTION 20
Member States, Effective Date and Amendment
(a) Any state is eligible to become a member state of the Compact.
(b) The Compact shall become effective and binding upon legislative enactment of the Compact into law by no less than seven (7) states. Thereafter, it shall become effective and binding on a state upon enactment of the Compact into law by that state.
(c) The governors of nonmember states, or their designees, shall be invited to participate in the activities of the Interstate Commission on a nonvoting basis prior to adoption of the Compact by all states.
(d) The Interstate Commission may propose amendments to the Compact for enactment by the member states. No amendment shall become effective and binding upon the Interstate Commission and the member states unless and until it is enacted into law by unanimous consent of the member states.
SECTION 21
Withdrawal
(a) Once effective, the Compact shall continue in force and remain binding upon each and every member state; provided that a member state may withdraw from the Compact by specifically repealing the statute which enacted the Compact into law.
(b) Withdrawal from the Compact shall be by the enactment of a statute repealing the same, but shall not take effect until one (1) year after the effective date of such statute and until written notice of the withdrawal has been given by the withdrawing state to the Governor of each other member state.
(c) The withdrawing state shall immediately notify the chairperson of the Interstate Commission in writing upon the introduction of legislation repealing the Compact in the withdrawing state.
(d) The Interstate Commission shall notify the other member states of the withdrawing state's intent to withdraw within sixty (60) days of its receipt of notice provided under subsection (c).
(e) The withdrawing state is responsible for all dues, obligations and liabilities incurred through the effective date of withdrawal, including obligations, the performance of which extend beyond the effective date of withdrawal.
(f) Reinstatement following withdrawal of a member state shall occur upon the withdrawing state reenacting the Compact or upon such later date as determined by the Interstate Commission.
(g) The Interstate Commission is authorized to develop rules to address the impact of the withdrawal of a member state on licenses granted in other member states to physicians who designated the withdrawing member state as the state of principal license.
SECTION 22
Dissolution
(a) The Compact shall dissolve effective upon the date of the withdrawal or default of the member state which reduces the membership in the Compact to one (1) member state.
(b) Upon the dissolution of the Compact, the Compact becomes null and void and shall be of no further force or effect, and the business and affairs of the Interstate Commission shall be concluded and surplus funds shall be distributed in accordance with the bylaws.
SECTION 23
Severability and Construction
(a) The provisions of the Compact shall be severable, and if any phrase, clause, sentence, or provision is deemed unenforceable, the remaining provisions of the Compact shall be enforceable.
(b) The provisions of the Compact shall be liberally construed to effectuate its purposes.
(c) Nothing in the Compact shall be construed to prohibit the applicability of other interstate compacts to which the states are members.
SECTION 24
Binding Effect of Compact and Other Laws
(a) Nothing herein prevents the enforcement of any other law of a member state that is not inconsistent with the Compact.
(b) All laws in a member state in conflict with the Compact are superseded to the extent of the conflict.
(c) All lawful actions of the Interstate Commission, including all rules and bylaws promulgated by the Commission, are binding upon the member states.
(d) All agreements between the Interstate Commission and the member states are binding in accordance with their terms.
(e) In the event any provision of the Compact exceeds the constitutional limits imposed on the legislature of any member state, such provision shall be ineffective to the extent of the conflict with the constitutional provision in question in that member state.
SECTION 124. Section 75-15-11, Mississippi Code of 1972, is amended as follows:
75-15-11. Each application for a license shall be accompanied by:
(a) Certified financial statements, reasonably satisfactory to the commissioner, showing that the applicant has a net worth of at least Twenty-five Thousand Dollars ($25,000.00) plus Fifteen Thousand Dollars ($15,000.00) for each location in excess of one (1) at which the applicant proposes to conduct money transmissions in this state, computed according to generally accepted accounting principles, but in no event shall the net worth be required to be in excess of Two Hundred Fifty Thousand Dollars ($250,000.00).
(b) A surety bond issued by a bonding company or insurance company authorized to do business in this state, in the principal sum of Twenty-five Thousand Dollars ($25,000.00) or in an amount equal to outstanding money transmissions in Mississippi, whichever is greater, but in no event shall the bond be required to be in excess of Five Hundred Thousand Dollars ($500,000.00). However, the commissioner may increase the required amount of the bond upon the basis of the impaired financial condition of a licensee as evidenced by a reduction in net worth, financial losses or other relevant criteria. The bond shall be in form satisfactory to the commissioner and shall run to the state for the use and benefit of the Department of Banking and Consumer Finance and any claimants against the applicant or his agents to secure the faithful performance of the obligations of the applicant and his agents with respect to the receipt, handling, transmission and payment of money in connection with money transmissions in Mississippi. The aggregate liability of the surety in no event shall exceed the principal sum of the bond. The surety on the bond shall have the right to cancel the bond upon giving sixty (60) days' notice in writing to the commissioner and thereafter shall be relieved of liability for any breach of condition occurring after the effective date of the cancellation. Any claimants against the applicant or his agents may themselves bring suit directly on the bond, or the Attorney General may bring suit thereon, subject to the provisions of Sections 1 and 2 of this act, in behalf of those claimants, either in one (1) action or successive actions.
(c) In lieu of the corporate surety bond, the applicant may deposit with the State Treasurer bonds or other obligations of the United States or guaranteed by the United States or bonds or other obligations of this state or of any municipal corporation, county, or other political subdivision or agency of this state, or certificates of deposit of national or state banks doing business in Mississippi, having an aggregate market value at least equal to that of the corporate surety bond otherwise required. Those bonds or obligations or certificates of deposit shall be deposited with the State Treasurer to secure the same obligations as would a corporate surety bond, but the depositor shall be entitled to receive all interest and dividends thereon and shall have the right to substitute other bonds or obligations or certificates of deposit for those deposited, with the approval of the commissioner, and shall be required so to do on order of the commissioner made for good cause shown. The State Treasurer shall provide for custody of the bonds or obligations or certificates of deposits by a qualified trust company or bank located in the State of Mississippi or by any Federal Reserve Bank. The compensation, if any, of the custodian for acting as such under this section shall be paid by the depositing licensee.
(d) Proof of registration as a money service business per 31 CFR Section 103.41, if applicable.
(e) A set of fingerprints from any local law enforcement agency for each owner of a sole proprietorship, partners in a partnership or principal owners of a limited liability company that own at least ten percent (10%) of the voting shares of the company, shareholders owning ten percent (10%) or more of the outstanding shares of the corporation, except publically traded corporations and their subsidiaries, and any other executive officer with significant oversight duties of the business. In order to determine the applicant's suitability for license, the commissioner shall forward the fingerprints to the Department of Public Safety for a state criminal history records check, and the fingerprints shall be forwarded by the Department of Public Safety to the FBI for a national criminal history records check. The department shall not issue a license if it finds that the applicant, or any person who is an owner, partner, director or executive officer of the applicant, has been convicted of: (i) a felony in any jurisdiction; or (ii) a crime that, if committed within the state, would constitute a felony under the laws of this state; or (iii) a misdemeanor of fraud, theft, forgery, bribery, embezzlement or making a fraudulent or false statement in any jurisdiction. For the purposes of this chapter, a person shall be deemed to have been convicted of a crime if the person has pleaded guilty to a crime before a court or federal magistrate, or plea of nolo contendere, or has been found guilty of a crime by the decision or judgment of a court or federal magistrate or by the verdict of a jury, irrespective of the pronouncement of sentence or the suspension of a sentence, unless the person convicted of the crime has received a pardon from the President of the United States or the Governor or other pardoning authority in the jurisdiction where the conviction was obtained.
SECTION 125. Section 75-21-1, Mississippi Code of 1972, is amended as follows:
75-21-1. A trust or combine is a combination, contract, understanding or agreement, expressed or implied, between two (2) or more persons, corporations or firms or association of persons or between any one or more of either with one or more of the others, when inimical to public welfare and the effect of which would be:
(a) To restrain trade;
(b) To limit, increase or reduce the price of a commodity;
(c) To limit, increase or reduce the production or output of a commodity;
(d) To hinder competition in the production, importation, manufacture, transportation, sale or purchase of a commodity;
(e) To engross or forestall a commodity;
(f) To issue, own or hold the certificate of stock of any trust and combine within the spirit of this chapter knowing it to be such at the time of the issue or the acquisition or holding such certificate; or
(g) To place the control to any extent of business or of the proceeds or earnings thereof, contrary to the spirit and meaning of this chapter, in the power of trustees, by whatever name called; or
(h) To enable or empower any other person than themselves, their proper officers, agents and employees to dictate or control the management of business, contrary to the spirit and meaning of this chapter; or
(i) To unite or pool interest in the importation, manufacture, production, transportation, or price of a commodity, contrary to the spirit and meaning of this chapter.
Any corporation, domestic or foreign, or any partnership, or individual, or other association, or person whatsoever, who are now, or shall hereafter create, enter into, become a member of, or a party to any trust or combine as hereinabove defined shall be deemed and adjudged guilty of a conspiracy to defraud and shall be subject to the penalties hereinafter provided. Any person, association of persons, corporation, or corporations, domestic or foreign, who shall be a party or belong to a trust and combine shall be guilty of crime and upon conviction thereof shall, for a first offense be fined in any sum not less than One Hundred Dollars ($100.00) nor more than Five Thousand Dollars ($5,000.00) and for a second or subsequent offense not less than Two Hundred Dollars ($200.00) nor more than Ten Thousand Dollars ($10,000.00), and may be enjoined by a final decree of the chancery court, in a suit by the state, subject to the provisions of Sections 1 and 2 of this act, on the relation of the Attorney General, from the further prosecution of or doing of the acts constituting the trust and combine as defined in this chapter.
SECTION 126. Section 75-21-7, Mississippi Code of 1972, is amended as follows:
75-21-7. Any person, corporation, partnership, firm or association of persons and the officers and representatives of the corporation or association violating any of the provisions of this chapter shall forfeit not less than One Hundred Dollars ($100.00) nor more than Two Thousand Dollars ($2,000.00) for every such violation. Each month in which such person, corporation or association shall violate this chapter shall be a separate violation, the forfeiture and penalty in such case to be recovered alone by suit in the name of the state on the relation of the Attorney General, subject to the provisions of Sections 1 and 2 of this act, and by the consent of the Attorney General suits may be brought by any district attorney, such suits to be brought in any court of competent jurisdiction.
SECTION 127. Section 75-21-37, Mississippi Code of 1972, is amended as follows:
75-21-37. It shall be the duty of the district attorneys in their several districts, when requested by the Attorney General, to enforce the civil features of the antitrust laws of this state by appropriate legal proceedings and suits at law or in equity; and their duty to enforce criminal features of said laws shall be the same as their duty to enforce other criminal statutes and shall be subject to the provisions of Sections 1 and 2 of this act for the Attorney General. All such suits shall be brought by and in the name of the State of Mississippi upon the relation of the Attorney General or an authorized district attorney.
SECTION 128. Section 75-24-9, Mississippi Code of 1972, is amended as follows:
75-24-9. Whenever the Attorney General has reason to believe that any person is using, has used, or is about to use any method, act or practice prohibited by Section 75-24-5, and that proceedings would be in the public interest, he may bring an action subject to the provisions of Sections 1 and 2 of this act, in the name of the state against such person to restrain by temporary or permanent injunction the use of such method, act or practice. The action shall be brought in the chancery or county court of the county in which such person resides or has his principal place of business, or, with consent of the parties, may be brought in the chancery or county court of the county in which the State Capitol is located. The said courts are authorized to issue temporary or permanent injunctions to restrain and prevent violations of this chapter, and such injunctions shall be issued without bond.
SECTION 129. Section 75-24-15, Mississippi Code of 1972, is amended as follows:
75-24-15. (1) In addition to all other statutory and common law rights, remedies and defenses, any person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by the seller, lessor, manufacturer or producer of a method, act or practice prohibited by Section 75-24-5 may bring an action at law in the court having jurisdiction in the county in which the seller, lessor, manufacturer or producer resides, or has his principal place of business or, where the act or practice prohibited by Section 75-24-5 allegedly occurred, to recover such loss of money or damages for the loss of such property, or may assert, by way of setoff or counterclaim, the fact of such loss in a proceeding against him for the recovery of the purchase price or rental, or any portion thereof, of the goods or services.
(2) In any private action brought under this chapter, the plaintiff must have first made a reasonable attempt to resolve any claim through an informal dispute settlement program approved by the Attorney General, approval which is subject to the provisions of Sections 1 and 2 of this act.
(3) In any action or counterclaim under this section of this chapter, a prevailing defendant may recover in addition to any other relief that may be provided in this section costs and a reasonable attorney's fee, if in the opinion of the court, said action or counterclaim was frivolous or filed for the purpose of harassment or delay.
(4) Nothing in this chapter shall be construed to permit any class action or suit, but every private action must be maintained in the name of and for the sole use and benefit of the individual person.
SECTION 130. Section 75-24-19, Mississippi Code of 1972, is amended as follows:
75-24-19. (1) Civil remedies.
(a) Any person who violated the terms of an injunction issued under Section 75-24-9 shall forfeit and pay to the state a civil penalty in a sum not to exceed Ten Thousand Dollars ($10,000.00) per violation which shall be payable to the General Fund of the State of Mississippi. For the purposes of this section, the chancery or county court issuing an injunction shall retain jurisdiction, and the cause shall be continued, and in such cases the Attorney General acting in the name of the state may petition for recovery of civil penalties.
(b) In any action brought under Section 75-24-9, if the court finds from clear and convincing evidence, that a person knowingly and willfully used any unfair or deceptive trade practice, method or act prohibited by Section 75-24-5, the Attorney General, upon petition to the court, may recover on behalf of the state a civil penalty in a sum not to exceed Ten Thousand Dollars ($10,000.00) per violation, subject to the provisions of Sections 1 and 2 of this act. One-half (1/2) of said penalty shall be payable to the Office of Consumer Protection to be deposited into the Attorney General's special fund. All monies collected under this section shall be used by the Attorney General for consumer fraud education and investigative and enforcement operations of the Office of Consumer Protection. The other one-half (1/2) shall be payable to the General Fund of the State of Mississippi. The Attorney General may also recover, in addition to any other relief that may be provided in this section, investigative costs and a reasonable attorney's fee, subject to the provisions of Sections 1 and 2 of this act.
(2) No penalty authorized by this section shall be deemed to limit the court's powers to insure compliance with its orders, decrees and judgments, or punish for the violations thereof.
(3) For purposes of this section, a knowing and willful violation occurs when the court finds from clear and convincing evidence that the party committing the violation knew or should have known that his conduct was a violation of Section 75-24-5.
SECTION 131. Section 75-24-21, Mississippi Code of 1972, is amended as follows:
75-24-21. It shall be the duty of the district and county attorneys to lend to the Attorney General such assistance as the Attorney General may request in the commencement and prosecution of actions pursuant to this chapter, subject to the provisions of Sections 1 and 2 of this act. The district attorney and county attorney shall, within their respective jurisdictions, have the same duty and responsibility under this chapter as that of the Attorney General statewide in the enforcement thereof, and they shall prosecute actions hereunder in the same manner as provided for the Attorney General. When any action is prosecuted by such district or county attorney alone or in concert, he or they shall make a full report thereon to the Attorney General, including the final disposition of the matter.
When any action has been prosecuted by a district or county attorney, at the request of the Attorney General, the Attorney General is authorized to pay the actual cost and expense of such action after same has been submitted to and approved by the court in which the action was taken, subject always to the final approval of the Attorney General.
The Attorney General may establish programs for the education of the public with respect to this chapter.
SECTION 132. Section 75-24-27, Mississippi Code of 1972, is brought forward as follows:
75-24-27. (1) To accomplish the objectives and to carry out the duties prescribed in this chapter, the Attorney General, or his designee, in addition to the powers conferred by this chapter, may:
(a) Issue subpoenas and subpoenas duces tecum;
(b) Issue cease and desist orders to persons suspected of violating any provisions of this chapter;
(c) Administer an oath or affirmation to any person;
(d) Conduct hearings in aid of any investigation or inquiry;
(e) Compel the production of books, papers, documents, and other evidence, and call upon other state agencies for information;
(f) Issue any necessary rules and regulations in order to carry out the provisions of this chapter; and
(g) Enter into an assurance of voluntary compliance or an assurance of voluntary discontinuance with any person for settlement purposes.
(2) Unless otherwise ordered by a court for good cause shown, no statement or documentary material produced pursuant to subpoena under this section shall be produced for inspection or copying by, nor shall the contents thereof be disclosed to any person other than the authorized employees of the Attorney General without the consent of the person who produced the material.
(3) The Attorney General may use the documentary material or copies thereof in the enforcement of this chapter by presentation before any court, provided that any such material which contains trade secrets or proprietary information shall not be presented except with the approval of the court in which the action is pending after adequate notice to the person furnishing such material. However, when material containing trade secrets or proprietary information is presented with court approval, the material and the evidence pertaining thereto shall be held in camera and shall not be part of the court record or trial transcript.
SECTION 133. Section 75-24-29, Mississippi Code of 1972, is amended as follows:
75-24-29. (1) This section applies to any person who conducts business in this state and who, in the ordinary course of the person's business functions, owns, licenses or maintains personal information of any resident of this state.
(2) For purposes of this section, the following terms shall have the meanings ascribed unless the context clearly requires otherwise:
(a) "Breach of security" means unauthorized acquisition of electronic files, media, databases or computerized data containing personal information of any resident of this state when access to the personal information has not been secured by encryption or by any other method or technology that renders the personal information unreadable or unusable;
(b) "Personal information" means an individual's first name or first initial and last name in combination with any one or more of the following data elements:
(i) Social security number;
(ii) Driver's license number or state identification card number; or
(iii) An account number or credit or debit card number in combination with any required security code, access code or password that would permit access to an individual's financial account; "personal information" does not include publicly available information that is lawfully made available to the general public from federal, state or local government records or widely distributed media;
(iv) "Affected individual" means any individual who is a resident of this state whose personal information was, or is reasonably believed to have been, intentionally acquired by an unauthorized person through a breach of security.
(3) A person who conducts business in this state shall disclose any breach of security to all affected individuals. The disclosure shall be made without unreasonable delay, subject to the provisions of subsections (4) and (5) of this section and the completion of an investigation by the person to determine the nature and scope of the incident, to identify the affected individuals, or to restore the reasonable integrity of the data system. Notification shall not be required if, after an appropriate investigation, the person reasonably determines that the breach will not likely result in harm to the affected individuals.
(4) Any person who conducts business in this state that maintains computerized data which includes personal information that the person does not own or license shall notify the owner or licensee of the information of any breach of the security of the data as soon as practicable following its discovery, if the personal information was, or is reasonably believed to have been, acquired by an unauthorized person for fraudulent purposes.
(5) Any notification required by this section shall be delayed for a reasonable period of time if a law enforcement agency determines that the notification will impede a criminal investigation or national security and the law enforcement agency has made a request that the notification be delayed. Any such delayed notification shall be made after the law enforcement agency determines that notification will not compromise the criminal investigation or national security and so notifies the person of that determination.
(6) Any notice required by the provisions of this section may be provided by one (1) of the following methods: (a) written notice; (b) telephone notice; (c) electronic notice, if the person's primary means of communication with the affected individuals is by electronic means or if the notice is consistent with the provisions regarding electronic records and signatures set forth in 15 USCS 7001; or (d) substitute notice, provided the person demonstrates that the cost of providing notice in accordance with paragraph (a), (b) or (c) of this subsection would exceed Five Thousand Dollars ($5,000.00), that the affected class of subject persons to be notified exceeds five thousand (5,000) individuals or the person does not have sufficient contact information. Substitute notice shall consist of the following: electronic mail notice when the person has an electronic mail address for the affected individuals; conspicuous posting of the notice on the Web site of the person if the person maintains one; and notification to major statewide media, including newspapers, radio and television.
(7) Any person who conducts business in this state that maintains its own security breach procedures as part of an information security policy for the treatment of personal information, and otherwise complies with the timing requirements of this section, shall be deemed to be in compliance with the security breach notification requirements of this section if the person notifies affected individuals in accordance with the person's policies in the event of a breach of security. Any person that maintains such a security breach procedure pursuant to the rules, regulations, procedures or guidelines established by the primary or federal functional regulator, as defined in 15 USCS 6809(2), shall be deemed to be in compliance with the security breach notification requirements of this section, provided the person notifies affected individuals in accordance with the policies or the rules, regulations, procedures or guidelines established by the primary or federal functional regulator in the event of a breach of security of the system.
(8) Failure to comply with the requirements of this section shall constitute an unfair trade practice and shall be enforced by the Attorney General, subject to the provisions of Sections 1 and 2 of this act; however, nothing in this section may be construed to create a private right of action.
SECTION 134. Section 75-24-59, Mississippi Code of 1972, is amended as follows:
75-24-59. In addition to other penalties and remedies provided in Sections 75-24-51 through 75-24-61, whenever it appears that any person is engaged or is about to engage in any act or practice which constitutes a pyramid sales scheme or which is prohibited by Sections 75-24-51 through 75-24-61, the Attorney General may bring an action, subject to the provisions of Sections 1 and 2 of this act in the name of the state pursuant to the provisions of Section 75-24-9 in order to enjoin any such act or practice.
SECTION 135. Section 75-24-355, Mississippi Code of 1972, is amended as follows:
75-24-355. (1) The Attorney General shall have the authority under Sections 75-24-351 through 75-24-357 to conduct civil investigations and bring civil actions, subject to the provisions of Sections 1 and 2 of this act.
(2) In an action brought by the Attorney General, subject to the provisions of Sections 1 and 2 of this act, under Sections 75-24-351 through 75-24-357, the court may award or impose any relief available under state law.
(3) In addition to the relief provided for in Section 75-24-357, upon a motion by the Attorney General and a finding by the court that there is a reasonable likelihood that a person violated Section 75-24-353, the court may require the person to post a bond in an amount equal to a good faith estimate of the costs to litigate a claim and amounts reasonably likely to be recovered if an action were to be brought under Section 75-24-355. A hearing shall be held if either party requests a hearing.
SECTION 136. Section 75-60-21, Mississippi Code of 1972, is amended as follows:
75-60-21. The commission shall petition the chancery court of the county in which a person or agent offers one or more courses of instruction subject to the provisions of this chapter or advertises for the offering of such courses without a certificate of registration for an order enjoining such offering or advertising. The court may grant such injunctive relief upon a showing that the respondent named in the petition is offering or advertising one or more courses of instruction without a certificate of registration. The Attorney General, subject to the provisions of Sections 1 and 2 of this act, or the district attorney of the district including the county in which such action is brought, shall, upon request of the commission, represent the commission in prosecuting any such action.
SECTION 137. Section 75-75-19, Mississippi Code of 1972, is brought forward as follows:
75-75-19. It shall be the duty of the sheriff of the county to require every such concern or organization doing business in his county to submit to him for inspection a valid certificate of compliance issued by the Secretary of State as provided by Section 75-75-17. It shall be unlawful for any such concern or organization to do business in any county of this state until it has submitted to the sheriff of the county for inspection its valid certificate of compliance.
Any person or persons or firm or corporation violating any of the provisions of Section 75-75-17 shall be guilty of a misdemeanor and on conviction thereof shall be fined not more than Five Hundred Dollars ($500.00), or imprisoned in the county jail not exceeding six (6) months, or by both such fine and imprisonment in the discretion of the court.
Whenever any person or persons or firm or corporation operates or attempts to operate in violation of Section 75-75-17, the Attorney General of the state, the district attorney of the district, the county attorney, or any person who is a citizen of the county, may bring an action in equity in the name of the State of Mississippi, upon the relation of such Attorney General, district attorney, or county attorney, or person to abate such operation and to enjoin any person or persons or firm or corporation operating the same from further operation thereof. Orders and injunctions, both temporary and permanent, may be issued and the same procedure shall be followed therein in the same manner as the law relating to nuisances.
SECTION 138. Section 75-76-87, Mississippi Code of 1972, is amended as follows:
75-76-87.
(1) Applications, returns and information contained therein filed or furnished
under this chapter shall be confidential, and except in accordance with proper
judicial order or as otherwise authorized by this chapter, it shall be unlawful
for * * * the Commissioner of Revenue, members
of the Mississippi Gaming Commission or * * *
any deputy, agent, clerk or other employee of the Department of Revenue, the
Mississippi Gaming Commission or the Department of Information
Technology Services, or any former employee thereof to divulge or make
known in any manner the amount of income or any particulars set forth or
disclosed on any application, report or return required.
The
term "proper judicial order" as used in this chapter shall not
include subpoenas or subpoenas duces tecum but shall include only those orders
entered by a court of record in this state after furnishing notice and a
hearing to the taxpayer and the * * * Department of Revenue.
The court shall not authorize the furnishing of such information unless it is
satisfied that the information is needed to pursue pending litigation wherein
the return itself is in issue, or the judge is satisfied that the need for
furnishing the information outweighs the rights of the taxpayer to have such information
secreted.
(2)
Such information contained on the application, returns or reports from the
licensee or the Mississippi Gaming Commission may be furnished to: (a) members
and employees of the * * * Department of Revenue and the income tax
department thereof, for the purpose of auditing, comparing and correcting
returns; (b) the Attorney General, subject to the provisions of Sections 1
and 2 of this act, or any other attorney representing the state in any
action in respect to the amount of tax under the provisions of this chapter;
(c) the Mississippi Gaming Commission; or (d) the revenue department of the
other states or the federal government when said states of federal government
grants a like comity to Mississippi.
(3)
The State Auditor and the employees of his office shall have the right to
examine only such tax returns as are necessary for auditing the * * * Department of Revenue,
or the Mississippi Gaming Commission and the same prohibitions against disclosure
which apply to the * * * Department of Revenue shall apply to the State
Auditor and his office.
(4)
Nothing in this section shall prohibit the * * * Commissioner
of Revenue from making available information necessary to recover taxes,
fees, fines or damages owing the state pursuant to the authority granted in
Section 27-75-16.
SECTION 139. Section 75-76-145, Mississippi Code of 1972, is amended as follows:
75-76-145. (1) The Attorney General, at the request of the executive director or the commission, may institute a civil action, subject to the provisions of Sections 1 and 2 of this act, in any court of this state against any person subject to this chapter, to restrain a violation of this chapter.
(2) The court shall give priority over other civil actions to an action brought pursuant to this section.
(3) An action brought against a person pursuant to this section shall not preclude a criminal action or administrative proceeding against that person.
SECTION 140. Section 75-76-147, Mississippi Code of 1972, is amended as follows:
75-76-147. (1) The commission or the executive director shall initiate proceedings or actions appropriate to enforce the provisions of this chapter and may recommend that a district attorney or the Attorney General, subject to the provisions of Sections 1 and 2 of this act, prosecute any public offense committed in violation of any provision of this chapter, or in violation of Section 97-19-55 when the offense involves the use of a casino marker issued to a licensed gaming establishment.
(2) If an investigation indicates probable cause for belief that a violation of this chapter, or a violation of Section 97-19-55 when the offense involves the use of a casino marker issued to a licensed gaming establishment, has occurred, the commission or the executive director shall refer the matter and the evidence gathered during the investigation to the district attorney having jurisdiction, with a request that such violation be prosecuted (a) by presentation to the grand jury if it appears that a felony violation has occurred, or (b) either by presentation to the grand jury or by filing a criminal affidavit if it appears that a misdemeanor violation has occurred.
(3) If a district attorney declines to prosecute an offense referred to him by the commission or the executive director, he shall respond in writing to the commission or the executive director within sixty (60) days following receipt of the request to prosecute and state the reasons declining to prosecute.
(4) If the commission or the executive director, after reviewing a district attorney's declination to prosecute, disagrees with the decision of such district attorney, the commission or the executive director may then refer the request for criminal prosecution to the Attorney General. In conducting any such prosecution, the Attorney General shall have all powers of a district attorney, including the power to issue or cause to be issued subpoenas or other process, and the right to enter the grand jury room while the grand jury is in session and to perform services with reference to the work of the grand jury.
SECTION 141. Section 75-91-7, Mississippi Code of 1972, is amended as follows:
75-91-7. (1) Whenever the Attorney General or a district attorney has reason to believe that any person is advertising or conducting or is about to advertise or conduct a live musical performance or production in violation of Section 75-91-5 and that proceedings would be in the public interest, the Attorney General, subject to the provisions of Sections 1 and 2 of this act, or district attorney may bring an action in the name of the state against the person to restrain by temporary or permanent injunction that practice.
(2) Whenever any court issues a permanent injunction to restrain and prevent violations of this chapter as authorized in subsection (1) of this section, the court may, in its discretion, direct that the defendant restore to any person in interest any monies or property, real or personal, which may have been acquired by means of any violation of this chapter, under terms and conditions to be established by the court.
SECTION 142. Section 77-1-43, Mississippi Code of 1972, is amended as follows:
77-1-43. (1) The commission may apply to the circuit or chancery court, by proper proceeding, for aid in the enforcement of obedience to its process, and to compel compliance with the law and its lawful orders, decisions, and determinations. Said courts shall have jurisdiction to grant aid and relief in such cases, subject to the right of appeal to the Supreme Court by the party aggrieved. The Attorney General, subject to the provisions of Sections 1 and 2 of this act, or district attorney in his district, shall institute such proceedings in the name of the commission.
(2) Any action for violation of the law, or for the violation of any lawful rule, regulation or order of the commission may be instituted by the commission or by the Attorney General in any court of competent jurisdiction.
(3) The remedies given by this chapter against all carriers under the supervision of the commission, are cumulative to those now in existence by law.
SECTION 143. Section 77-2-11, Mississippi Code of 1972, is amended as follows:
77-2-11. (1) A person who serves as (a) Commissioner of the Public Service Commission, (b) Executive Director of the public utilities staff, or (c) Executive Secretary of the commission shall not, while employed with or within one (1) year after leaving the commission or public utilities staff, accept employment with, receive compensation directly or indirectly from, or enter into a contractual relationship with an entity, or an affiliate company of an entity, that was subject to rate regulation by the commission at the time of his departure.
(2) An entity or an affiliate company of an entity that is subject to rate regulation by the commission, or a person acting on behalf of the entity or its affiliate, shall not negotiate or offer to employ or compensate a commissioner of the Public Service Commission, Executive Director of the public utilities staff or the Executive Secretary of the commission, while the person is so employed or within one (1) year after the person leaves that employment.
(3) A person who is employed with the public utilities staff shall not, within one (1) year, after leaving the public utilities staff, accept employment with, or receive compensation, directly or indirectly from the Public Service Commission or the public service commission staff.
(4) A person who is employed with the Public Service Commission or public service commission staff, shall not, within one (1) year, after leaving the commission or public service commission staff, accept employment with, or receive compensation, directly or indirectly, from the public utilities staff.
(5) A person who violates this section is subject to a civil penalty not to exceed Ten Thousand Dollars ($10,000.00) for each violation. The Attorney General may bring an action, subject to the provisions of Sections 1 and 2 of this act, in circuit court to collect the penalties provided in this section.
SECTION 144. Section 77-3-611, Mississippi Code of 1972, is amended as follows:
77-3-611. The Attorney General shall investigate any complaints received concerning violations of Sections 77-3-601 through 77-3-619. If, after investigating any complaint, the Attorney General finds that there has been a violation of Sections 77-3-601 through 77-3-619, the Attorney General, subject to the provisions of Sections 1 and 2 of this act, may bring an action to impose a civil penalty and to seek other relief, including injunctive relief, as the court deems appropriate against the telephone solicitor. The civil penalty shall not exceed Ten Thousand Dollars ($10,000.00) per violation and shall be deposited in the State General Fund, unallocated. This civil penalty may be recovered in any action brought under Sections 77-3-601 through 77-3-619 by the Attorney General. Alternatively, the Attorney General may terminate any investigation or action upon agreement by the person to pay a stipulated civil penalty. The Attorney General or the court may waive any civil penalty if the person has previously made full restitution or reimbursement or has paid actual damages to the consumers who have been injured by the violation.
SECTION 145. Section 79-11-133, Mississippi Code of 1972, is amended as follows:
79-11-133. (1) The Attorney General shall be given notice of the commencement of any proceeding which Section 79-11-101 et seq. authorizes the Attorney General to bring but which has been commenced by another person.
(2) Whenever any provision of Section 79-11-101 et seq. requires that notice be given to the Attorney General or permits the Attorney General to commence a proceeding:
(a) If no proceeding has been commenced, the Attorney General, subject to the provisions of Sections 1 and 2 of this act, may take appropriate action including, but not limited to, seeking injunctive relief.
(b) If a proceeding has been commenced by a person other than the Attorney General, the Attorney General, subject to the provisions of Sections 1 and 2 of this act, as of right, may intervene in such proceeding.
SECTION 146. Section 79-11-509, Mississippi Code of 1972, is amended as follows:
79-11-509. (1) The Secretary of State shall deny, suspend or revoke a registration or an exemption for the following reasons:
(a) The application for registration or renewal is incomplete.
(b) The application or renewal fee (where applicable) has not been paid.
(c) A document filed with the Secretary of State contains one or more false or misleading statements or omits material facts.
(d) The charitable contributions have not been or are not being applied for the purpose or purposes stated in the documents filed with the Secretary of State.
(e) The applicant or registrant has violated or failed to comply with any provisions of this chapter or any rule or order thereunder.
(f) Any applicant, registrant, officer, director, or partner of the applicant or registrant, or any agent or employee thereof who has been convicted of a felony or a misdemeanor involving misrepresentation, misapplication or misuse of the money or property of another maintains a position where he or she has access to or control over the funds of the charitable organization.
(g) The applicant or registrant has engaged in the use or employment of dishonesty, fraud, deception, misrepresentation, false promise or false pretense.
(h) The applicant or registrant has had the authority to engage in charitable or fund-raising activities denied, revoked or suspended by the Secretary of State or any other state or jurisdiction.
(i) The applicant or registrant has been convicted of any criminal offense committed in connection with the performance of activities regulated under Sections 79-11-501 through 79-11-529 or any criminal offense involving untruthfulness or dishonesty or any criminal offense relating adversely to the registrant's or applicant's fitness to perform activities regulated by Sections 79-11-501 through 79-11-529. For the purposes of this paragraph, a plea of guilty, non vult, nolo contendere or any other similar disposition of alleged criminal activity shall be deemed a conviction.
(j) Any applicant, registrant, officer, director, or partner of the applicant or registrant, or any agent, volunteer or employee thereof, who has been convicted under federal or state law of any criminal offense involving acts against children maintains a position where he or she is in close contact with children.
(k) Any officer, director, partner, employee, agent or volunteer has accrued three (3) or more unremediated citations issued by the Secretary of State pursuant to this section.
(l) The applicant or registrant has engaged in other forms of misconduct as may be determined by the rules adopted by the Secretary of State.
(2) The Secretary of State shall notify the applicant or licensee of his intent to deny, suspend or revoke a license. The notification shall contain the reasons for the action and shall inform him of his right to request an administrative hearing within thirty (30) days of receipt of the notification. The denial, suspension or revocation shall become effective thirty (30) days after receipt of the notification unless a request for an administrative hearing is received by the Secretary of State before the expiration of the thirty (30) days. If a hearing is requested and the denial, suspension or revocation is upheld, the denial, suspension or revocation shall become effective upon the service of the final administrative decision on the applicant or licensee.
(3) Registration shall become effective no later than noon of the thirtieth day after a completed application is filed, if no denial order is in effect and no proceeding is pending under this chapter. The Secretary of State may, by rule or order, specify an earlier effective date, and the Secretary of State may, by order, defer the effective date until noon of the thirtieth day after the filing of any amendment.
(4) (a) Whenever it appears to the Secretary of State that any person has engaged in or is about to engage in any act or practice constituting a violation of any provision of this chapter or any rule or order hereunder, he may, in his discretion, seek one or more of the following remedies in addition to other remedies authorized by law:
( * * *i) Issue a cease and desist order,
with or without a prior hearing against the person or persons engaged in the
prohibited activities, directing them to cease and desist from further illegal
activity;
( * * *ii) Administratively dissolve or seek
the judicial dissolution of a domestic corporation that is a charitable
organization, or revoke the certificate of authority of a foreign corporation
that is a charitable organization; or
( * * *iii) Issue an order imposing an
administrative penalty up to a maximum of Twenty-five Thousand Dollars
($25,000.00) for each offense, each violation to be considered as a separate
offense in a single proceeding or a series of related proceedings;
( * * *b) For the purpose of determining the
amount or extent of a sanction, if any, to be imposed under paragraph * * * (a) (ii) or (iii) of this
subsection, the Secretary of State shall consider, among other factors, the
frequency, persistence and willfulness of the conduct constituting a violation
of this chapter or a rule promulgated thereunder or an order of the Secretary
of State, the number of persons adversely affected by the conduct, and the
resources of the person committing the violation.
(5) In addition to the above remedies, the Secretary of State may issue a citation to any person engaging in any act or practice constituting a violation of any provision of this chapter or any rule or order hereunder. The Secretary of State shall establish rules providing remediation of certain citations, and the decision whether to allow such remediation will be within the Secretary of State's discretion.
(6) Whenever it appears to the Secretary of State or Attorney General, subject to the provisions of Sections 1 and 2 of this act, that any person has engaged in or is about to engage in any act or practice constituting a violation of any provision of Sections 79-11-501 through 79-11-529 or any rule or order thereunder, either official may, in his discretion, take any or all of the following actions: bring an action in chancery court to obtain a temporary restraining order or injunction to enjoin the acts or practices and enforce compliance with Sections 79-11-501 through 79-11-529 or any rule or order thereunder; collect administrative penalties imposed under this section; or obtain on behalf of a charitable organization the return or repayment of any property or consideration received as private inurement or an excess benefit in violation of Section 79-11-519(3)(j). Upon a proper showing a permanent or temporary injunction, restraining order or writ of mandamus shall be granted and a receiver or conservator may be appointed for the defendant or the defendant's assets. In addition, upon a proper showing, the court may enter an order of rescission, restitution or disgorgement directed to any person who has engaged in any act constituting a violation of any provision of Sections 79-11-501 through 79-11-529 or any rule or order thereunder. In addition the court may impose a civil penalty up to a maximum of Twenty-five Thousand Dollars ($25,000.00) for each offense, and each violation shall be considered as a separate offense in a single proceeding or a series of related proceedings. The court may not require the Secretary of State or Attorney General to post a bond.
(7) Any person aggrieved by a final order of the Secretary of State may obtain a review of the order in the Chancery Court of the First Judicial District of Hinds County, Mississippi, by filing in the court, within thirty (30) days after the entry of the order, a written petition praying that the order be modified or set aside, in whole or in part. A copy of the petition shall be forthwith served upon the Secretary of State and thereupon the Secretary of State shall certify and file in court a copy of the filing and evidence upon which the order was entered. When these have been filed, the court has exclusive jurisdiction to affirm, modify, enforce or set aside the order, in whole or in part.
SECTION 147. Section 79-11-519, Mississippi Code of 1972, is amended as follows:
79-11-519. (1) It is the duty of the district attorneys and county prosecuting attorneys of this state to prosecute all violations of the provisions of Sections 79-11-501 through 79-11-529. In addition, actions for violations of Sections 79-11-501 through 79-11-529 may be prosecuted by the Attorney General, subject to the provisions of Sections 1 and 2 of this act.
(2) Sections 79-11-501 through 79-11-529 shall not be construed to limit or restrict the exercise of the powers or the performance of the duties of the Attorney General which he otherwise is authorized to exercise or perform under any other provision of law by statute or otherwise except the rendering of interpretative opinions in accordance with Section 79-11-503 which shall be limited to the Secretary of State.
(3) It shall be a violation of Sections 79-11-501 through 79-11-529 for any person:
(a) To misrepresent:
(i) The purpose or beneficiary of a solicitation;
(ii) The purpose or nature of a charitable organization; or
(iii)
That any other person sponsors or endorses a solicitation * * *;
(b) To use or exploit the fact of registration so as to lead the public to believe that such registration constitutes an endorsement or approval by the state;
(c) To use the name of a charitable organization, or to display any emblem, device or printed matter belonging to or associated with a charitable organization without the express written permission of the charitable organization;
(d) To make any false or misleading statement on any document required by Sections 79-11-501 through 79-11-529 or any rule or order thereunder;
(e) To fail to comply with the requirements of Sections 79-11-501 through 79-11-529 or any rule or order thereunder;
(f) To commit any unfair or deceptive act or practice; to employ any device, scheme or artifice to defraud; to engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person; or to obtain money or property by means of any false pretense, representation or promise;
(g) To fail to provide complete and timely payment to a charitable organization of the proceeds from a solicitation campaign or a charitable sales promotion;
(h) To make any false or misleading statements in the solicitations of contributions in this state or to omit to state any fact necessary in order to make the statements made, in light of the circumstances under which they are made, not misleading;
(i) To refuse or fail, after notice, to produce any records required to be kept under Sections 79-11-501 through 79-11-529, or any rule or order promulgated thereunder;
(j) To benefit, directly or indirectly, from any transaction in which an economic benefit is provided by a charitable organization where the value of the benefit provided by the organization exceeds the fair market value of the consideration received by the organization.
(4) It shall be a violation of Sections 79-11-501 through 79-11-529 for any charitable organization:
(a) To engage in any financial transaction which is not related to the accomplishment of a charitable purpose, or which jeopardizes or interferes with the ability of the charitable organization to accomplish a charitable purpose;
(b) To expend an unreasonable amount of money for solicitation or management;
(c) To use the name which is the same as or confusingly similar to the name of another charitable organization unless the latter organization shall consent in writing to its use;
(d) To represent itself as being associated with another charitable organization without the express written acknowledgment and endorsement of such other charitable organization;
(e) To use the services of an unregistered professional fund-raiser or fund-raising counsel or professional solicitor;
(f) To fail to comply with any provisions of Sections 79-11-501 through 79-11-529 or any rule or order thereunder;
(g) To employ as an officer, director, partner, employee, agent or volunteer any person who has accrued three (3) or more unremediated citations issued by the Secretary of State pursuant to Section 79-11-509;
(h) To employ as an officer, director, partner, employee or agent any person who has been convicted of a felony or misdemeanor involving misrepresentation, misapplication or misuse of the money or property of another, in a capacity where that person has access to or control over the funds of the charitable organization;
(i) To employ as an officer, director, partner, employee, volunteer or agent any person who has been convicted under federal or state law of any criminal offense involving acts against children, where such position will bring the person into close contact with children; or
(j) To apply the charitable organization's funds or assets for private inurement or excess benefits which exceed the fair market value of the property or services received in return from directors, officers, or those persons who are deemed disqualified persons or insiders under applicable federal law for tax-exempt organizations.
(5) It shall be a violation of Sections 79-11-501 through 79-11-529 for any professional fund-raiser, professional fund-raising counsel or any professional solicitor:
(a) To perform any services on behalf of an unregistered charitable organization; or
(b) To fail to comply with any provisions of Sections 79-11-501 through 79-11-529 or any rule or order thereunder.
(6) It shall be a violation of Sections 79-11-501 through 79-11-529 for any person, in connection with a public safety organization solicitation:
(a) To use any representation that implies that the contribution is for or on behalf of a public safety agency or a public safety organization, or using any emblem, device, or printed matter belonging to or associated with a public safety agency or organization, unless authorized in writing to do so by the agency or organization;
(b) To use a name, symbol, or statement that is similar to that used by a public safety agency or organization in a manner that is intended to confuse or mislead a person being solicited;
(c) To represent or imply that the solicitor is a peace officer or member of a public safety agency or public safety organization if the solicitor is not;
(d) To solicit for a public safety organization, independent promoter, public safety publication, or cause by representing that those who respond affirmatively to the solicitation will receive favored treatment by public safety personnel; or
(e) To fail to comply with any provisions of Sections 79-11-501 through 79-11-529 or any rule or order thereunder.
(7) A misrepresentation may be accomplished by words or conduct or failure to disclose a material fact. Regardless of a person's intent or the lack of injury, the above acts and practices are prohibited in the planning, conduct or execution of any solicitation or charitable sales promotion.
(8) The Secretary of State or the Attorney General may exercise the authority granted in this section against any charitable organization or person which or who operates under the guise or pretense of being an organization exempted by the provisions of Section 79-11-505, and is not in fact an organization entitled to such an exemption.
SECTION 148. Section 79-13-1105, Mississippi Code of 1972, is amended as follows:
79-13-1105. The Attorney General may maintain an action, subject to the provisions of Sections 1 and 2 of this act, to restrain a foreign limited liability partnership from transacting business in this state in violation of this article.
SECTION 149. Section 79-14-1012, Mississippi Code of 1972, is amended as follows:
79-14-1012. The Attorney General, subject to the provisions of Sections 1 and 2 of this act, may maintain an action to enjoin a foreign limited partnership from doing business in this state in violation of this article.
SECTION 150. Section 79-29-1017, Mississippi Code of 1972, is amended as follows:
79-29-1017. The Attorney General, subject to the provisions of Sections 1 and 2 of this act, may bring an action to restrain a foreign limited liability company from transacting business in this state in violation of this article.
SECTION 151. Section 81-1-67, Mississippi Code of 1972, is amended as follows:
81-1-67. The commissioner and the deputy commissioner each shall, before entering upon the discharge of their respective duties, take and subscribe the constitutional oath of office and shall execute to the State of Mississippi a bond in the sum of Fifty Thousand Dollars ($50,000.00) with a surety company authorized to do business in this state, to be delivered to and approved by the Treasurer of the State of Mississippi.
The state bank examiners shall, before entering upon the discharge of their duties, take and subscribe the constitutional oath of office and shall execute to the State of Mississippi a bond in the sum of Twenty Thousand Dollars ($20,000.00) with a surety company authorized to do business in this state, to be delivered to and approved by the Treasurer of the State of Mississippi.
These bonds shall, by the terms thereof, be payable to the state, and shall be liable to the state in actions brought by the Attorney General, subject to the provisions of Sections 1 and 2 of this act, on behalf of the state, and shall also be liable in actions brought by anyone aggrieved by breach thereof. The bonds shall be conditioned for the faithful and impartial performance of the duties of the particular office for which the bond was given, for the faithful and proper handling and accounting for all funds, and for the payment of all damages and costs which may accrue under provisions of law.
SECTION 152. Section 81-19-9, Mississippi Code of 1972, is amended as follows:
81-19-9. (1) An application to become licensed as a consumer loan broker shall be in writing, under oath and in a form prescribed by the commissioner, and shall contain:
(a) The full name and address of the applicant;
(b) The street address, municipality and county of the proposed licensed location;
(c) The complete business and residence address of:
(i) The proprietor, if an individual applicant;
(ii) All partners, if a partnership applicant; or
(iii) The directors and chief executive officer, if a corporate applicant; and
(d) Such other information as the commissioner may reasonably require in order to evaluate the applicant's suitability to operate as a consumer loan broker.
(2) Each application shall be accompanied by the payment of Three Hundred Dollars ($300.00), which shall be the annual license fee for each licensed location of a consumer loan broker and is in addition to all other taxes and fees required by law. The twelve-month licensing period shall begin on the date the license is issued.
(3) Each application shall be accompanied by evidence of a surety bond in an amount of Twenty-five Thousand Dollars ($25,000.00) issued by a company authorized to do business in Mississippi and approved by the commissioner. The bond shall be in favor of the State of Mississippi to discharge unsatisfied indebtedness or liability of the licensed consumer loan broker to the state, any political subdivision thereof or to any person who may have a cause of action against the broker by reason of the broker's conduct as a licensed consumer loan broker.
The surety on the bond may cancel same by giving sixty (60) days' notice in writing to the commissioner and thereafter shall be relieved of liability after the effective date of cancellation. The commissioner shall require a new bond in an amount of Twenty-five Thousand Dollars ($25,000.00) at any time he has knowledge that a licensee's bond has expired, is about to expire or, in the opinion of the commissioner, is insecure for any reason. The license of any consumer loan broker who fails to post a replacement bond within ten (10) days from receipt of a notice from the commissioner shall be cancelled immediately.
Claimants against the licensee may bring suit directly on the bond, and the Attorney General, subject to the provisions of Sections 1 and 2 of this act, also may bring suit on behalf of claimants in one (1) or multiple actions.
SECTION 153. Section 81-22-17, Mississippi Code of 1972, is amended as follows:
81-22-17. The commissioner may exercise the following powers and functions:
(a) Complaint investigation. The commissioner may receive and act on complaints, take action to obtain voluntary compliance with this chapter or refer cases to the Attorney General, subject to the provisions of Sections 1 and 2 of this act, who shall appear for and represent the commissioner in court.
(b) Rules. The commissioner may adopt reasonable administrative regulations, not inconsistent with law, for the enforcement of this chapter.
(c) Examination of licensees. To assure compliance with the provisions of this chapter, the department may examine the books and records of any licensee without notice during normal business hours. The commissioner shall charge the licensee an examination fee in an amount not less than Three Hundred Dollars ($300.00) nor more than Six Hundred Dollars ($600.00) for each office or location within the State of Mississippi, plus any actual expenses incurred while examining the licensee's records or books that are located outside the State of Mississippi. However, in no event shall a licensee be examined more than once in a two-year period unless for cause shown based upon consumer complaint and/or other exigent reasons as determined by the commissioner.
(d) Examination of nonlicensees. The department, its designated officers and employees, or its duly authorized representatives, for the purposes of discovering violations of this chapter and for the purpose of determining whether any person or individual reasonably suspected by the commissioner of conducting business that requires a license under this chapter, may investigate those persons and individuals and examine all relevant books, records and papers employed by those persons or individuals in the transaction of business, and may summon witnesses and examine them under oath concerning matters as to the business of those persons, or other such matters as may be relevant to the discovery of violations of this chapter, including, without limitation, the conduct of business without a license as required under this chapter.
SECTION 154. Section 83-29-45, Mississippi Code of 1972, is amended as follows:
83-29-45. The Commissioner of Insurance, or any person or persons he may appoint, shall have the power of visitation and examination into the affairs of any domestic society. They shall have free access to all the books, papers, and documents that relate to the business of the society.
The expenses of such examination shall be paid by the society examined, upon statement furnished by the Commissioner of Insurance, and the examination shall be made as often as the commissioner, in his sole discretion, deems appropriate but, at a minimum, at least once in every five (5) years.
Whenever after examination the Commissioner of Insurance is satisfied that any domestic society has failed to comply with any provisions of this chapter, or is exceeding its powers, or is not carrying out its contracts in good faith, or is transacting business fraudulently, or whenever any domestic society, after the existence of one (1) year or more, shall have a membership of less than four hundred (400) or shall determine to discontinue business, the Commissioner of Insurance may present the facts relating thereto to the Attorney General, subject to the provisions of Sections 1 and 2 of this act, who shall, if he deem the circumstances warrant, commence an action in quo warranto in a court of competent jurisdiction. Such court shall thereupon notify the officers of such society of a hearing, and if it shall then appear that such society should be closed, said society shall be enjoined from carrying on any further business; and some person shall be appointed receiver of such society and shall proceed at once to take possession of the books, papers, monies, and other assets of the society and shall forthwith, under the direction of the court, proceed to close the affairs of the society and to distribute its funds to those entitled thereto.
SECTION 155. Section 83-37-31, Mississippi Code of 1972, is amended as follows:
83-37-31. Should the insurance commissioner find that any person, firm, association, or corporation engaged in the business herein described has refused to pay any just claim or demand based on the contracts, or that he or they be unable to pay same after the claim or demand has been legally determined to be just and outstanding, or fail to comply with any of the licensing provisions of this chapter, the commissioner shall notify the Attorney General. The Attorney General, subject to the provisions of Sections 1 and 2 of this act, shall apply to the chancery court for a receivership to wind up the business of such person, firm, association, or corporation, shall represent the interest of all claimants under such contracts, and shall have a right of action for the use and benefit of the claimants against the bond or security herein required for the full amount of all such claims, together with all necessary costs of such receivership.
SECTION 156. Section 83-49-31, Mississippi Code of 1972, is amended as follows:
83-49-31. If the commissioner finds that any prepaid legal services plan operator or its sponsor (a) has failed to comply with any provision of this chapter; (b) is fraudulently operated; (c) is in such condition as to render further plan operations hazardous to the public interest or the interest of subscribers; (d) is financially unable to meet its obligations and claims as they come due; or (e) has violated any other provision of law, he may apply to the Circuit Court of the First Judicial District of Hinds County, State of Mississippi, for an injunction. The court may forthwith issue a temporary injunction restraining the transaction of any business by the plan, and it may, after a full hearing, make the injunction permanent, and appoint one or more receivers to take the plan to settle its affairs, and distribute its funds to those entitled thereto, subject to such rules and orders as the court may prescribe. If it appears that a crime has been committed in connection with the sale, advertisement, administration or management of any prepaid legal services plan, the Attorney General of the State of Mississippi may pursue the appropriate criminal action, subject to the provisions of Sections 1 and 2 of this act.
SECTION 157. Section 83-69-1, Mississippi Code of 1972, is amended as follows:
83-69-1. The Interstate Insurance Product Regulation Compact is enacted into law and entered into by this State with any and all States legally joining in accordance with its terms, in the form substantially as follows:
Article I. Purposes. The purposes of this Compact are, through means of joint and cooperative action among the Compacting States:
1. To promote and protect the interest of consumers of individual and group annuity, life insurance, disability income and long-term care insurance products;
2. To develop Uniform Standards for insurance products covered under the Compact;
3. To establish a central clearinghouse to receive and provide prompt review of insurance products covered under the Compact and, in certain cases, advertisements related thereto, submitted by Insurers authorized to do business in one or more Compacting States;
4. To give appropriate regulatory approval to those product filings and advertisements satisfying the applicable Uniform Standard;
5. To improve coordination of regulatory resources and expertise between State insurance departments regarding the setting of Uniform Standards and review of insurance products covered under the Compact;
6. To create the Interstate Insurance Product Regulation Commission; and
7. To perform these and such other related functions as may be consistent with the State regulation of the business of insurance.
Article II. Definitions. For purposes of this Compact:
1. "Advertisement" means any material designed to create public interest in a product, or induce the public to purchase, increase, modify, reinstate, borrow on, surrender, replace or retain a policy, as more specifically defined in the Rules and Operating Procedures of the Commission.
2. "Bylaws" mean those Bylaws established by the Commission for its governance, or for directing or controlling the Commission's actions or conduct.
3. "Compacting State" means any State which has enacted this Compact legislation and which has not withdrawn pursuant to Article XIV, Section 1, or been terminated pursuant to Article XIV, Section 2.
4. "Commission" means the "Interstate Insurance Product Regulation Commission" established by this Compact.
5. "Commissioner" means the chief insurance regulatory official of a State including, but not limited to, Commissioner, superintendent, director or administrator.
6. "Domiciliary State" means the State in which an Insurer is incorporated or organized; or, in the case of an alien Insurer, its State of entry.
7. "Insurer" means any entity licensed by a State to issue contracts of insurance for any of the lines of insurance covered by this Compact.
8. "Member" means the person chosen by a Compacting State as its representative to the Commission, or his or her designee.
9. "Noncompacting State" means any State which is not at the time a Compacting State.
10. "Operating Procedures" mean procedures promulgated by the Commission implementing a Rule, Uniform Standard or a provision of this Compact.
11. "Product" means the form of a policy or contract, including any application, endorsement, or related form which is attached to and made a part of the policy or contract, and any evidence of coverage or certificate, for an individual or group annuity, life insurance, disability income or long-term care insurance product that an Insurer is authorized to issue.
12. "Rule" means a statement of general or particular applicability and future effect promulgated by the Commission, including a Uniform Standard developed pursuant to Article VII of this Compact, designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of the Commission, which shall have the force and effect of law in the Compacting States.
13. "State" means any State, district or territory of the United States of America.
14. "Third Party Filer" means an entity that submits a product filing to the Commission on behalf of an Insurer.
15. "Uniform Standard" means a standard adopted by the Commission for a product line, pursuant to Article VII of this Compact, and shall include all of the product requirements in aggregate; provided, that each Uniform Standard shall be construed, whether express or implied, to prohibit the use of any inconsistent, misleading or ambiguous provisions in a product and the form of the product made available to the public shall not be unfair, inequitable or against public policy as determined by the Commission.
Article III. Establishment of the Commission and Venue.
1. The Compacting States hereby create and establish a joint public agency known as the "Interstate Insurance Product Regulation Commission." Pursuant to Article IV, the Commission will have the power to develop Uniform Standards for product lines, receive and provide prompt review of products filed therewith, and give approval to those product filings satisfying applicable Uniform Standards; provided, it is not intended for the Commission to be the exclusive entity for receipt and review of insurance product filings. Nothing herein shall prohibit any Insurer from filing its product in any State wherein the Insurer is licensed to conduct the business of insurance; and any such filing shall be subject to the laws of the State where filed.
2. The Commission is a body corporate and politic, and an instrumentality of the Compacting States.
3. The Commission is solely responsible for its liabilities except as otherwise specifically provided in this Compact.
4. Venue is proper and judicial proceedings by or against the Commission shall be brought solely and exclusively in a Court of competent jurisdiction where the principal office of the Commission is located.
Article IV. Powers of the Commission. The Commission shall have the following powers:
1. To promulgate Rules, pursuant to Article VII of this Compact, which shall have the force and effect of law and shall be binding in the Compacting States to the extent and in the manner provided in this Compact;
2. To exercise its Rulemaking Authority and establish reasonable Uniform Standards for Products covered under the Compact, and Advertisement related thereto, which shall have the force and effect of law and shall be binding in the Compacting States, but only for those products filed with the Commission, provided, that a Compacting State shall have the right to opt out of such Uniform Standard pursuant to Article VII, to the extent and in the manner provided in this Compact, and, provided further, that any Uniform Standard established by the Commission for long-term care insurance products may provide the same or greater protections for consumers as, but shall not provide less than, those protections set forth in the National Association of Insurance Commissioners' Long-Term Care Insurance Model Act and Long-Term Care Insurance Model Regulation, respectively, adopted as of 2001. The Commission shall consider whether any subsequent amendments to the NAIC Long-Term Care Insurance Model Act or Long-Term Care Insurance Model Regulation adopted by the NAIC require amending of the Uniform Standards established by the Commission for long-term care insurance products;
3. To receive and review in an expeditious manner products filed with the Commission, and rate filings for disability income and long-term care insurance products, and give approval of those products and rate filings that satisfy the applicable Uniform Standard, where such approval shall have the force and effect of law and be binding on the Compacting States to the extent and in the manner provided in the Compact;
4. To receive and review in an expeditious manner Advertisement relating to long-term care insurance products for which Uniform Standards have been adopted by the Commission, and give approval to all Advertisement that satisfies the applicable Uniform Standard. For any product covered under this Compact, other than long-term care insurance products, the Commission shall have the authority to require an Insurer to submit all or any part of its Advertisement with respect to that product for review or approval prior to use, if the Commission determines that the nature of the product is such that an Advertisement of the product could have the capacity or tendency to mislead the public. The actions of the Commission as provided in this section shall have the force and effect of law and shall be binding in the Compacting States to the extent and in the manner provided in the Compact;
5.
To exercise its Rulemaking Authority and designate Products and Advertisement
that may be subject to a self-certification process without the need for prior
approval by the Commission * * *;
6. To promulgate Operating Procedures, pursuant to Article VII of this Compact, which shall be binding in the Compacting States to the extent and in the manner provided in this Compact;
7. To bring and prosecute legal proceedings or actions in its name as the Commission; provided, that the standing of any State insurance department to sue or be sued under applicable law shall not be affected;
8. To issue subpoenas requiring the attendance and testimony of witnesses and the production of evidence;
9. To establish and maintain offices;
10. To purchase and maintain insurance and bonds;
11. To borrow, accept or contract for services of personnel, including, but not limited to, employees of a Compacting State;
12. To hire employees, professionals or specialists, and elect or appoint officers, and to fix their compensation, define their duties and give them appropriate authority to carry out the purposes of the Compact, and determine their qualifications; and to establish the Commission's personnel policies and programs relating to, among other things, conflicts of interest, rates of compensation and qualifications of personnel;
13. To accept any and all appropriate donations and grants of money, equipment, supplies, materials and services, and to receive, utilize and dispose of the same; provided that at all times the Commission shall strive to avoid any appearance of impropriety;
14. To lease, purchase, accept appropriate gifts or donations of, or otherwise to own, hold, improve or use, any property, real, personal or mixed; provided that at all times the Commission shall strive to avoid any appearance of impropriety;
15. To sell, convey, mortgage, pledge, lease, exchange, abandon or otherwise dispose of any property, real, personal or mixed;
16. To remit filing fees to Compacting States as may be set forth in the Bylaws, Rules or Operating Procedures;
17. To enforce compliance by Compacting States with Rules, Uniform Standards, Operating Procedures and Bylaws;
18. To provide for dispute resolution among Compacting States;
19. To advise Compacting States on issues relating to Insurers domiciled or doing business in Noncompacting jurisdictions, consistent with the purposes of this Compact;
20. To provide advice and training to those personnel in State insurance departments responsible for product review, and to be a resource for State insurance departments;
21. To establish a budget and make expenditures;
22. To borrow money;
23. To appoint committees, including advisory committees comprising members, State insurance regulators, State legislators or their representatives, insurance industry and consumer representatives, and such other interested persons as may be designated in the Bylaws;
24. To provide and receive information from, and to cooperate with law enforcement agencies;
25. To adopt and use a corporate seal; and
26. To perform such other functions as may be necessary or appropriate to achieve the purposes of this Compact consistent with the State regulation of the business of insurance.
Article V. Organization of the Commission.
1. Membership, Voting and Bylaws.
a. Each Compacting State shall have and be limited to one (1) member. Each member shall be qualified to serve in that capacity pursuant to applicable law of the Compacting State. Any member may be removed or suspended from office as provided by the law of the State from which he or she shall be appointed. Any vacancy occurring in the Commission shall be filled in accordance with the laws of the Compacting State wherein the vacancy exists. Nothing herein shall be construed to affect the manner in which a Compacting State determines the election or appointment and qualification of its own Commissioner.
b. Each member shall be entitled to one (1) vote and shall have an opportunity to participate in the governance of the Commission in accordance with the Bylaws. Notwithstanding any provision herein to the contrary, no action of the Commission with respect to the promulgation of a Uniform Standard shall be effective unless two-thirds (2/3) of the members vote in favor thereof.
c. The Commission shall, by a majority of the members, prescribe Bylaws to govern its conduct as may be necessary or appropriate to carry out the purposes, and exercise the powers, of the Compact, including, but not limited to:
i. Establishing the fiscal year of the Commission;
ii. Providing reasonable procedures for appointing and electing members, as well as holding meetings, of the Management Committee;
iii. Providing reasonable standards and procedures: (i) for the establishment and meetings of other committees, and (ii) governing any general or specific delegation of any authority or function of the Commission;
iv. Providing reasonable procedures for calling and conducting meetings of the Commission that consists of a majority of Commission members, ensuring reasonable advance notice of each such meeting and providing for the right of citizens to attend each such meeting with enumerated exceptions designed to protect the public's interest, the privacy of individuals, and Insurers' proprietary information, including trade secrets. The Commission may meet in camera only after a majority of the entire membership votes to close a meeting en toto or in part. As soon as practicable, the Commission must make public (i) a copy of the vote to close the meeting revealing the vote of each member with no proxy votes allowed, and (ii) votes taken during such meeting;
v. Establishing the titles, duties and authority and reasonable procedures for the election of the officers of the Commission;
vi. Providing reasonable standards and procedures for the establishment of the personnel policies and programs of the Commission. Notwithstanding any civil service or other similar laws of any Compacting State, the Bylaws shall exclusively govern the personnel policies and programs of the Commission;
vii. Promulgating a code of ethics to address permissible and prohibited activities of Commission members and employees; and
viii. Providing a mechanism for winding up the operations of the Commission and the equitable disposition of any surplus funds that may exist after the termination of the Compact after the payment and/or reserving of all of its debts and obligations.
d. The Commission shall publish its Bylaws in a convenient form and file a copy thereof and a copy of any amendment thereto, with the appropriate agency or officer in each of the Compacting States.
2. Management Committee, Officers and Personnel.
a. A Management Committee comprising no more than fourteen (14) members shall be established as follows:
i. One (1) member from each of the six (6) Compacting States with the largest premium volume for individual and group annuities, life, disability income and long-term care insurance products, determined from the records of the NAIC for the prior year;
ii. Four (4) members from those Compacting States with at least two percent (2%) of the market based on the premium volume described above, other than the six (6) Compacting States with the largest premium volume, selected on a rotating basis as provided in the Bylaws; and
iii. Four (4) members from those Compacting States with less than two percent (2%) of the market, based on the premium volume described above, with one (1) selected from each of the four (4) zone regions of the NAIC as provided in the Bylaws.
b. The Management Committee shall have such authority and duties as may be set forth in the Bylaws, including but not limited to:
i. Managing the affairs of the Commission in a manner consistent with the Bylaws and purposes of the Commission;
ii. Establishing and overseeing an organizational structure within, and appropriate procedures for, the Commission to provide for the creation of Uniform Standards and other Rules, receipt and review of product filings, administrative and technical support functions, review of decisions regarding the disapproval of a product filing, and the review of elections made by a Compacting State to opt out of a Uniform Standard; provided that a Uniform Standard shall not be submitted to the Compacting States for adoption unless approved by two-thirds (2/3) of the members of the Management Committee;
iii. Overseeing the offices of the Commission; and
iv. Planning, implementing, and coordinating communications and activities with other State, federal and local government organizations in order to advance the goals of the Commission.
c. The Commission shall elect annually officers from the Management Committee, with each having such authority and duties, as may be specified in the Bylaws.
d. The Management Committee may, subject to the approval of the Commission, appoint or retain an executive director for such period, upon such terms and conditions and for such compensation as the Commission may deem appropriate. The executive director shall serve as secretary to the Commission, but shall not be a member of the Commission. The executive director shall hire and supervise such other staff as may be authorized by the Commission.
3. Legislative and Advisory Committees.
a. A legislative committee comprising State legislators or their designees shall be established to monitor the operations of, and make recommendations to, the Commission, including the Management Committee; provided that the manner of selection and term of any legislative committee member shall be as set forth in the Bylaws. Prior to the adoption by the Commission of any Uniform Standard, revision to the Bylaws, annual budget or other significant matter as may be provided in the Bylaws, the Management Committee shall consult with and report to the legislative committee.
b. The Commission shall establish two (2) advisory committees, one (1) of which shall comprise consumer representatives independent of the insurance industry, and the other comprising insurance industry representatives.
c. The Commission may establish additional advisory committees as its Bylaws may provide for the carrying out of its functions.
4. Corporate Records of the Commission. The Commission shall maintain its corporate books and records in accordance with the Bylaws.
5. Qualified Immunity, Defense and Indemnification.
a. The members, officers, executive director, employees and representatives of the Commission shall be immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused by or arising out of any actual or alleged act, error or omission that occurred, or that the person against whom the claim is made had a reasonable basis for believing occurred within the scope of Commission employment, duties or responsibilities; provided, that nothing in this paragraph shall be construed to protect any such person from suit and/or liability for any damage, loss, injury or liability caused by the intentional or willful and wanton misconduct of that person.
b. The Commission shall defend any member, officer, executive director, employee or representative of the Commission in any civil action seeking to impose liability arising out of any actual or alleged act, error or omission that occurred within the scope of Commission employment, duties or responsibilities, or that the person against whom the claim is made had a reasonable basis for believing occurred within the scope of Commission employment, duties or responsibilities; provided, that nothing herein shall be construed to prohibit that person from retaining his or her own counsel; and provided further, that the actual or alleged act, error or omission did not result from that person's intentional or willful and wanton misconduct.
c. The Commission shall indemnify and hold harmless any member, officer, executive director, employee or representative of the Commission for the amount of any settlement or judgment obtained against that person arising out of any actual or alleged act, error or omission that occurred within the scope of Commission employment, duties or responsibilities, or that such person had a reasonable basis for believing occurred within the scope of Commission employment, duties or responsibilities, provided, that the actual or alleged act, error or omission did not result from the intentional or willful and wanton misconduct of that person.
Article VI. Meetings and Acts of the Commission.
1. The Commission shall meet and take such actions as are consistent with the provisions of this Compact and the Bylaws.
2. Each member of the Commission shall have the right and power to cast a vote to which that Compacting State is entitled and to participate in the business and affairs of the Commission. A member shall vote in person or by such other means as provided in the Bylaws. The Bylaws may provide for members' participation in meetings by telephone or other means of communication.
3. The Commission shall meet at least once during each calendar year. Additional meetings shall be held as set forth in the Bylaws.
Article VII. Rules and Operating Procedures: Rulemaking Functions of the Commission and Opting Out of Uniform Standards.
1. Rulemaking Authority. The Commission shall promulgate reasonable Rules, including Uniform Standards, and Operating Procedures in order to effectively and efficiently achieve the purposes of this Compact. Notwithstanding the foregoing, in the event the Commission exercises its Rulemaking Authority in a manner that is beyond the scope of the purposes of this Compact, or the powers granted hereunder, then such an action by the Commission shall be invalid and have no force and effect.
2. Rulemaking Procedure. Rules and Operating Procedures shall be made pursuant to a rulemaking process that conforms to the Model State Administrative Procedure Act of 1981 as amended, as may be appropriate to the operations of the Commission. Before the Commission adopts a Uniform Standard, the Commission shall give written notice to the relevant State legislative committee(s) in each Compacting State responsible for insurance issues of its intention to adopt the Uniform Standard. The Commission in adopting a Uniform Standard shall consider fully all submitted materials and issue a concise explanation of its decision.
3. Effective Date and Opt Out of a Uniform Standard. A Uniform Standard shall become effective ninety (90) days after its promulgation by the Commission or such later date as the Commission may determine; provided, however, that a Compacting State may opt out of a Uniform Standard as provided in this Article. "Opt out" shall be defined as any action by a Compacting State to decline to adopt or participate in a promulgated Uniform Standard. All other Rules and Operating Procedures, and amendments thereto, shall become effective as of the date specified in each Rule, Operating Procedure or amendment.
4. Opt Out Procedure. A Compacting State may opt out of a Uniform Standard, either by legislation or regulation duly promulgated by the Insurance Department under the Compacting State's Administrative Procedure Act. If a Compacting State elects to opt out of a Uniform Standard by regulation, it must (a) give written notice to the Commission no later than ten (10) business days after the Uniform Standard is promulgated, or at the time the State becomes a Compacting State and (b) find that the Uniform Standard does not provide reasonable protections to the citizens of the State, given the conditions in the State. The Commissioner shall make specific findings of fact and conclusions of law, based on a preponderance of the evidence, detailing the conditions in the State which warrant a departure from the Uniform Standard and determining that the Uniform Standard would not reasonably protect the citizens of the State. The Commissioner must consider and balance the following factors and find that the conditions in the State and needs of the citizens of the State outweigh: (i) the intent of the Legislature to participate in, and the benefits of, an interstate agreement to establish national uniform consumer protections for the products subject to this Compact; and (ii) the presumption that a Uniform Standard adopted by the Commission provides reasonable protections to consumers of the relevant product.
Notwithstanding the foregoing, a Compacting State may, at the time of its enactment of this Compact, prospectively opt out of all Uniform Standards involving long-term care insurance products by expressly providing for such opt out in the enacted Compact, and such an opt out shall not be treated as a material variance in the offer or acceptance of any State to participate in this Compact. Such an opt out shall be effective at the time of enactment of this Compact by the Compacting State and shall apply to all existing Uniform Standards involving long-term care insurance products and those subsequently promulgated.
5. Effect of Opt Out. If a Compacting State elects to opt out of a Uniform Standard, the Uniform Standard shall remain applicable in the Compacting State electing to opt out until such time the opt out legislation is enacted into law or the regulation opting out becomes effective.
Once the opt out of a Uniform Standard by a Compacting State becomes effective as provided under the laws of that State, the Uniform Standard shall have no further force and effect in that State unless and until the legislation or regulation implementing the opt out is repealed or otherwise becomes ineffective under the laws of the State. If a Compacting State opts out of a Uniform Standard after the Uniform Standard has been made effective in that State, the opt out shall have the same prospective effect as provided under Article XIV for withdrawals.
6. Stay of Uniform Standard. If a Compacting State has formally initiated the process of opting out of a Uniform Standard by regulation, and while the regulatory opt out is pending, the Compacting State may petition the Commission, at least fifteen (15) days before the effective date of the Uniform Standard, to stay the effectiveness of the Uniform Standard in that State. The Commission may grant a stay if it determines the regulatory opt out is being pursued in a reasonable manner and there is a likelihood of success. If a stay is granted or extended by the Commission, the stay or extension thereof may postpone the effective date by up to ninety (90) days, unless affirmatively extended by the Commission; provided, a stay may not be permitted to remain in effect for more than one (1) year unless the Compacting State can show extraordinary circumstances which warrant a continuance of the stay, including, but not limited to, the existence of a legal challenge which prevents the Compacting State from opting out. A stay may be terminated by the Commission upon notice that the rulemaking process has been terminated.
7. Not later than thirty (30) days after a Rule or Operating Procedure is promulgated, any person may file a petition for judicial review of the Rule or Operating Procedure; provided, that the filing of such a petition shall not stay or otherwise prevent the Rule or Operating Procedure from becoming effective unless the court finds that the petitioner has a substantial likelihood of success. The court shall give deference to the actions of the Commission consistent with applicable law and shall not find the Rule or Operating Procedure to be unlawful if the Rule or Operating Procedure represents a reasonable exercise of the Commission's authority.
Article VIII. Commission Records and Enforcement.
1. The Commission shall promulgate Rules establishing conditions and procedures for public inspection and copying of its information and official records, except such information and records involving the privacy of individuals and Insurers' trade secrets. The Commission may promulgate additional Rules under which it may make available to federal and State agencies, including law enforcement agencies, records and information otherwise exempt from disclosure, and may enter into agreements with such agencies to receive or exchange information or records subject to nondisclosure and confidentiality provisions.
2. Except as to privileged records, data and information, the laws of any Compacting State pertaining to confidentiality or nondisclosure shall not relieve any Compacting State Commissioner of the duty to disclose any relevant records, data or information to the Commission; provided, that disclosure to the Commission shall not be deemed to waive or otherwise affect any confidentiality requirement; and further provided, that, except as otherwise expressly provided in this Compact, the Commission shall not be subject to the Compacting State's laws pertaining to confidentiality and nondisclosure with respect to records, data and information in its possession. Confidential information of the Commission shall remain confidential after such information is provided to any Commissioner.
3. The Commission shall monitor Compacting States for compliance with duly adopted Bylaws, Rules, including Uniform Standards, and Operating Procedures. The Commission shall notify any noncomplying Compacting State in writing of its noncompliance with Commission Bylaws, Rules or Operating Procedures. If a noncomplying Compacting State fails to remedy its noncompliance within the time specified in the notice of noncompliance, the Compacting State shall be deemed to be in default as set forth in Article XIV.
4. The Commissioner of any State in which an Insurer is authorized to do business, or is conducting the business of insurance, shall continue to exercise his or her authority to oversee the market regulation of the activities of the Insurer in accordance with the provisions of the State's law. The Commissioner's enforcement of compliance with the Compact is governed by the following provisions:
a. With respect to the Commissioner's market regulation of a Product or Advertisement that is approved or certified to the Commission, the content of the Product or Advertisement shall not constitute a violation of the provisions, standards or requirements of the Compact except upon a final order of the Commission, issued at the request of a Commissioner after prior notice to the Insurer and an opportunity for hearing before the Commission.
b. Before a Commissioner may bring an action for violation of any provision, standard or requirement of the Compact relating to the content of an Advertisement not approved or certified to the Commission, the Commission, or an authorized Commission officer or employee, must authorize the action. However, authorization pursuant to this paragraph does not require notice to the Insurer, opportunity for hearing or disclosure of requests for authorization or records of the Commission's action on such requests.
Article IX. Dispute Resolution. The Commission shall attempt, upon the request of a member, to resolve any disputes or other issues that are subject to this Compact and which may arise between two (2) or more Compacting States, or between Compacting States and Noncompacting States, and the Commission shall promulgate an Operating Procedure providing for resolution of such disputes.
Article X. Product Filing and Approval.
1. Insurers and Third Party Filers seeking to have a product approved by the Commission shall file the product with, and pay applicable filing fees to, the Commission. Nothing in this Compact shall be construed to restrict or otherwise prevent an Insurer from filing its product with the insurance department in any State wherein the Insurer is licensed to conduct the business of insurance, and such filing shall be subject to the laws of the States where filed.
2. The Commission shall establish appropriate filing and review processes and procedures pursuant to Commission Rules and Operating Procedures. Notwithstanding any provision herein to the contrary, the Commission shall promulgate Rules to establish conditions and procedures under which the Commission will provide public access to product filing information. In establishing such Rules, the Commission shall consider the interests of the public in having access to such information, as well as protection of personal medical and financial information and trade secrets, that may be contained in a product filing or supporting information.
3. Any product approved by the Commission may be sold or otherwise issued in those Compacting States for which the Insurer is legally authorized to do business.
Article XI. Review of Commission Decisions Regarding Filings.
1. Not later than thirty (30) days after the Commission has given notice of a disapproved Product or Advertisement filed with the Commission, the Insurer or Third Party Filer whose filing was disapproved may appeal the determination to a review panel appointed by the Commission. The Commission shall promulgate Rules to establish procedures for appointing such review panels and provide for notice and hearing. An allegation that the Commission, in disapproving a Product or Advertisement filed with the Commission, acted arbitrarily, capriciously, or in a manner that is an abuse of discretion or otherwise not in accordance with the law, is subject to judicial review in accordance with Article III, Section 4.
2. The Commission shall have authority to monitor, review and reconsider Products and Advertisement subsequent to their filing or approval upon a finding that the product does not meet the relevant Uniform Standard. Where appropriate, the Commission may withdraw or modify its approval after proper notice and hearing, subject to the appeal process in Section 1 above.
Article XII. Finance.
1. The Commission shall pay or provide for the payment of the reasonable expenses of its establishment and organization. To fund the cost of its initial operations, the Commission may accept contributions and other forms of funding from the National Association of Insurance Commissioners, Compacting States and other sources. Contributions and other forms of funding from other sources shall be of such a nature that the independence of the Commission concerning the performance of its duties shall not be compromised.
2. The Commission shall collect a filing fee from each Insurer and Third Party Filer filing a product with the Commission to cover the cost of the operations and activities of the Commission and its staff in a total amount sufficient to cover the Commission's annual budget.
3. The Commission's budget for a fiscal year shall not be approved until it has been subject to notice and comment as set forth in Article VII of this Compact.
4. The Commission shall be exempt from all taxation in and by the Compacting States.
5. The Commission shall not pledge the credit of any Compacting State, except by and with the appropriate legal authority of that Compacting State.
6. The Commission shall keep complete and accurate accounts of all its internal receipts, including grants and donations, and disbursements of all funds under its control. The internal financial accounts of the Commission shall be subject to the accounting procedures established under its Bylaws. The financial accounts and reports including the system of internal controls and procedures of the Commission shall be audited annually by an independent certified public accountant. Upon the determination of the Commission, but no less frequently than every three (3) years, the review of the independent auditor shall include a management and performance audit of the Commission. The Commission shall make an Annual Report to the Governor and Legislature of the Compacting States, which shall include a report of the independent audit. The Commission's internal accounts shall not be confidential and such materials may be shared with the Commissioner of any Compacting State upon request; provided, however, that any work papers related to any internal or independent audit and any information regarding the privacy of individuals and Insurers' proprietary information, including trade secrets, shall remain confidential.
7. No Compacting State shall have any claim to or ownership of any property held by or vested in the Commission or to any Commission funds held pursuant to the provisions of this Compact.
Article XIII. Compacting States, Effective Date and Amendment.
1. Any State is eligible to become a Compacting State.
2. The Compact shall become effective and binding upon legislative enactment of the Compact into law by two (2) Compacting States; provided, the Commission shall become effective for purposes of adopting Uniform Standards for, reviewing, and giving approval or disapproval of, Products filed with the Commission that satisfy applicable Uniform Standards only after twenty-six (26) States are Compacting States or, alternatively, by States representing greater than forty percent (40%) of the premium volume for life insurance, annuity, disability income and long-term care insurance products, based on records of the NAIC for the prior year. Thereafter, it shall become effective and binding as to any other Compacting State upon enactment of the Compact into law by that State.
3. Amendments to the Compact may be proposed by the Commission for enactment by the Compacting States. No amendment shall become effective and binding upon the Commission and the Compacting States unless and until all Compacting States enact the amendment into law.
Article XIV. Withdrawal, Default and Termination.
1. Withdrawal.
a. Once effective, the Compact shall continue in force and remain binding upon each and every Compacting State; provided, that a Compacting State may withdraw from the Compact ("Withdrawing State") by enacting a statute specifically repealing the statute which enacted the Compact into law.
b. The effective date of withdrawal is the effective date of the repealing statute. However, the withdrawal shall not apply to any product filings approved or self-certified, or any Advertisement of such products, on the date the repealing statute becomes effective, except by mutual agreement of the Commission and the Withdrawing State unless the approval is rescinded by the Withdrawing State as provided in paragraph (e) of this section.
c. The Commissioner of the Withdrawing State shall immediately notify the Management Committee in writing upon the introduction of legislation repealing this Compact in the Withdrawing State.
d. The Commission shall notify the other Compacting States of the introduction of such legislation within ten (10) days after its receipt of notice thereof.
e. The Withdrawing State is responsible for all obligations, duties and liabilities incurred through the effective date of withdrawal, including any obligations, the performance of which extend beyond the effective date of withdrawal, except to the extent those obligations may have been released or relinquished by mutual agreement of the Commission and the Withdrawing State. The Commission's approval of Products and Advertisement prior to the effective date of withdrawal shall continue to be effective and be given full force and effect in the Withdrawing State, unless formally rescinded by the Withdrawing State in the same manner as provided by the laws of the Withdrawing State for the prospective disapproval of Products or Advertisement previously approved under State law.
f. Reinstatement following withdrawal of any Compacting State shall occur upon the effective date of the Withdrawing State reenacting the Compact.
2. Default.
a. If the Commission determines that any Compacting State has at any time defaulted ("Defaulting State") in the performance of any of its obligations or responsibilities under this Compact, the Bylaws or duly promulgated Rules or Operating Procedures, then, after notice and hearing as set forth in the Bylaws, all rights, privileges and benefits conferred by this Compact on the Defaulting State shall be suspended from the effective date of default as fixed by the Commission. The grounds for default include, but are not limited to, failure of a Compacting State to perform its obligations or responsibilities, and any other grounds designated in Commission Rules. The Commission shall immediately notify the Defaulting State in writing of the Defaulting State's suspension pending a cure of the default. The Commission shall stipulate the conditions and the time period within which the Defaulting State must cure its default. If the Defaulting State fails to cure the default within the time period specified by the Commission, the Defaulting State shall be terminated from the Compact and all rights, privileges and benefits conferred by this Compact shall be terminated from the effective date of termination.
b. Product approvals by the Commission or product self-certifications, or any Advertisement in connection with such product, that are in force on the effective date of termination shall remain in force in the Defaulting State in the same manner as if the Defaulting State had withdrawn voluntarily pursuant to Section 1 of this article.
c. Reinstatement following termination of any Compacting State requires a reenactment of the Compact.
3. Dissolution of Compact.
a. The Compact dissolves effective upon the date of the withdrawal or default of the Compacting State which reduces membership in the Compact to one (1) Compacting State.
b. Upon the dissolution of this Compact, the Compact becomes null and void and shall be of no further force or effect, and the business and affairs of the Commission shall be wound up and any surplus funds shall be distributed in accordance with the Bylaws.
Article XV. Severability and Construction.
1. The provisions of this Compact shall be severable; and if any phrase, clause, sentence or provision is deemed unenforceable, the remaining provisions of the Compact shall be enforceable.
2. The provisions of this Compact shall be liberally construed to effectuate its purposes.
Article XVI. Binding Effect of Compact and Other Laws.
1. Other Laws
a. Nothing herein prevents the enforcement of any other law of a Compacting State, except as provided in paragraph (b) of this section.
b. For any product approved or certified to the Commission, the Rules, Uniform Standards and any other requirements of the Commission shall constitute the exclusive provisions applicable to the content, approval and certification of such products. For Advertisement that is subject to the Commission's authority, any Rule, Uniform Standard or other requirement of the Commission which governs the content of the Advertisement shall constitute the exclusive provision that a Commissioner may apply to the content of the Advertisement. Notwithstanding the foregoing, no action taken by the Commission shall abrogate or restrict: (i) the access of any person to State courts; (ii) remedies available under State law related to breach of contract, tort, or other laws not specifically directed to the content of the product; (iii) State law relating to the construction of insurance contracts; or (iv) the authority of the Attorney General of the State including, but not limited to, maintaining any actions or proceedings, as authorized by law and subject to the provisions of Sections 1 and 2 of this act.
c. All insurance products filed with individual States shall be subject to the laws of those States.
2. Binding Effect of this Compact.
a. All lawful actions of the Commission, including all Rules and Operating Procedures promulgated by the Commission, are binding upon the Compacting States.
b. All agreements between the Commission and the Compacting States are binding in accordance with their terms.
c. Upon the request of a party to a conflict over the meaning or interpretation of Commission actions, and upon a majority vote of the Compacting States, the Commission may issue advisory opinions regarding the meaning or interpretation in dispute.
d. In the event any provision of this Compact exceeds the constitutional limits imposed on the Legislature of any Compacting State, the obligations, duties, powers or jurisdiction sought to be conferred by that provision upon the Commission shall be ineffective as to that Compacting State, and those obligations, duties, powers or jurisdiction shall remain in the Compacting State and shall be exercised by the agency thereof to which those obligations, duties, powers or jurisdiction are delegated by law in effect at the time this Compact becomes effective.
SECTION 158. Section 85-11-19, Mississippi Code of 1972, is amended as follows:
85-11-19. (1) The department shall maintain notices of tax liens filed in the tax lien registry after January 1, 2015, in its information management system in a form that permits them to be readily accessible in an electronic form through the Internet and to be reduced to printed form. The electronic and printed form shall include the following information:
(a) The name of the taxpayer as judgment debtor;
(b) The name and address of the department;
(c) The tax lien number assigned to the lien by the department;
(d) Whether the enrollment is the first enrollment of the tax lien or a reenrollment of the tax lien;
(e) The amount of the taxes, penalties, interest, and fees indicated due on the notice of tax lien received from the department; and
(f) The date and time of enrollment or reenrollment.
(2) The department shall not charge for the access to information on the enrollment of tax liens by name of judgment debtor or by tax lien number. The department is, however, authorized to charge for the certification of any record or lack of records appearing on the tax lien registry. The department shall determine the process by which such tax lien registry certification can be requested, including a charge for such certification that shall cover at least the cost of providing the certification. The payment of the charge for a tax lien registry certification shall be retained by the department as reimbursement of its cost to provide the certification.
(3) The department is authorized to sell at bulk the information appearing on the tax lien registry. In selling the information, the department shall determine the process by which the information will be sold and the media or method by which it will be available to the purchaser and shall set a price for the information that will at least cover the cost of producing the information. The proceeds from the sale of bulk information shall be retained by the department and used to cover its cost to produce the information sold and to maintain the tax lien registry.
(4) Tax lien registry information, whether accessed by name of judgment debtor or by tax lien number at no charge, through a bulk sale of information or by other means, will not be used for a survey, marketing or solicitation purposes. Survey, marketing or solicitation purpose shall not include any action by the department or its authorized agent to collect a debt represented by a tax lien appearing in the tax lien registry. The department or the Attorney General, subject to the provisions of Sections 1 and 2 of this act, is hereby authorized to bring an action to enjoin the unlawful use of tax lien registry information for a survey, marketing or solicitation purpose and to recover the cost of such action, including reasonable attorney's fees.
SECTION 159. Section 91-8-1014, Mississippi Code of 1972, is amended as follows:
91-8-1014. (a) For the purposes of this section, "no-contest provision" includes a "no-contest provision," "in terrorem provision" or "forfeiture provision" of a trust instrument. A "no-contest provision" means a provision that, if given effect, would reduce or eliminate the interest of any beneficiary of the trust who, directly or indirectly, initiates or otherwise pursues:
(1) Any action to contest the validity of the trust or the terms of the trust;
(2) Any action to set aside or vary the terms of the trust;
(3) Any action to challenge the acts of the trustee or other fiduciary of the trust in the performance of the trustee's or other fiduciary's duties as described in the terms of the trust; or
(4) Any other act or proceedings to frustrate or defeat the settlor's intent as expressed in the terms of the trust.
(b) With regard to whether the beneficiary sought, received or relied upon legal counsel, a no-contest provision shall be enforceable according to the express terms of the no-contest provision without regard to the beneficiary's good or bad faith in taking the action that would justify the complete or partial forfeiture of the beneficiary's interest in the trust under the terms of the no-contest provision unless probable cause exists for the beneficiary taking such action on the grounds of:
(1) Fraud;
(2) Duress;
(3) Revocation;
(4) Lack of testamentary capacity;
(5) Undue influence;
(6) Mistake;
(7) Forgery; or
(8) Irregularity in the execution of the trust instrument.
(c) Subsection (b) shall not apply to:
(1) Any action brought solely to challenge the acts of the trustee or other fiduciary of the trust to the extent that the trustee or other fiduciary has committed a breach of fiduciary duties or breach of trust;
(2) Any action brought by the trustee or any other fiduciary serving under the terms of the trust, unless the trustee or other fiduciary is a beneficiary against whom the no-contest provision is otherwise enforceable;
(3) Any agreement among the beneficiaries and any other interested persons in settlement of a dispute or resolution of any other matter relating to the trust, including, without limitation, any nonjudicial settlement agreement;
(4) Any action to determine whether a proposed or pending motion, petition, or other proceeding constitutes a contest within the meaning of a no-contest provision;
(5) Any action brought by a beneficiary or on behalf of any such beneficiary for a construction or interpretation of the terms of the trust; or
(6) Any action brought by the Attorney General, subject to the provisions of Sections 1 and 2 of this act, for a construction or interpretation of a charitable trust or a trust containing a charitable interest if a provision exists in a trust purporting to penalize a charity or charitable interest for contesting the trust if probable cause exists for instituting proceedings.
(d) Pursuant to this section, courts shall enforce the settlor's intent as reflected in a no-contest provision to the greatest extent possible.
SECTION 160. Section 95-3-5, Mississippi Code of 1972, is amended as follows:
95-3-5. Whenever a nuisance exists, the Attorney General of the state, the district attorney of the district, the county attorney, or any person who is a citizen of the county, may bring an action in equity in the name of the State of Mississippi, subject to the provisions of Sections 1 and 2 of this act, upon the relation of such Attorney General, district attorney, or county attorney, or person to abate such nuisance and to perpetually enjoin the person or persons maintaining the same from further maintenance thereof.
SECTION 161. Section 95-3-13, Mississippi Code of 1972, is amended as follows:
95-3-13. The action when brought shall be triable at the next term of court, provided process shall have been served for twenty (20) or more days, otherwise at the following term, and said cause shall have precedence over all other cases except election contests, or injunctions. In such action evidence of the general reputation of the place, or an admission, or finding, of guilt of any person under the criminal laws against prostitution, lewdness, or assignation at any such place shall be admissible for the purpose of proving the existence of said nuisance and shall be prima facie evidence of such nuisance and of knowledge of and acquiescence and participation therein on the part of the person or persons charged with maintaining said nuisance as herein defined. If the complaint is filed by a person who is a citizen of the county, it shall not be dismissed except upon a sworn statement by the complainant and his or its attorney, setting forth the reasons why the actions should be dismissed and the dismissal approved by the district attorney or county attorney in writing or in open court. If the court be of the opinion that the action ought not to be dismissed, he may direct the district attorney or county attorney to prosecute said action to final decree, and if the action is continued more than one (1) term of court any person who is a citizen of the county, or the Attorney General, subject to the provisions of Sections 1 and 2 of this act, or the district attorney, or the county attorney, may be substituted for the complainant and prosecute said action to final decree. If the action is brought by a person who is a citizen of the county and the court finds that there were no reasonable grounds or cause for said action, the costs may be taxed to such person. If the existence of the nuisance be established upon the trial, a judgment shall be entered which shall perpetually enjoin the defendants and other person or persons from further maintaining the nuisance at the place complained of, and the defendants from maintaining such nuisance elsewhere within the chancery district, and may tax said defendants with all costs of the proceedings.
SECTION 162. Section 97-21-101, Mississippi Code of 1972, is amended as follows:
97-21-101. (1) All property, real or personal, including money, used in the course of, intended for use in the course of, derived from, or realized through, conduct in violation of Section 97-21-53, 97-21-55, 97-21-57 or 97-23-89 is subject to civil forfeiture to the state pursuant to the provisions of Section
97-21-103; provided, however, that a forfeiture of personal property encumbered by a bona fide security interest or real property encumbered by a bona fide mortgage, deed of trust, lien or encumbrance of record shall be subject to the interest of the secured party or subject to the interest of the holder of the mortgage, deed of trust, lien or encumbrance of record if such secured party or holder neither had knowledge of or consented to the act or omission.
(2) Property subject to forfeiture may be seized by law enforcement officers upon process issued by any appropriate court having jurisdiction over the property. Seizure without process may be made if:
(a) The seizure is incident to an arrest or a search under a search warrant or an inspection under a lawful administrative inspection;
(b) The property subject to seizure has been the subject of a prior judgment in favor of the state in a criminal injunction or forfeiture proceeding based upon this article.
(3) The Attorney General, any district attorney or any state agency having jurisdiction over conduct in violation of Section 97-21-53, 97-21-55, 97-21-57 or 97-23-89 may institute civil proceedings under this section. In any action brought under this section, the circuit court shall proceed as soon as practicable to the hearing and determination. Pending final determination, the circuit court may at any time enter such injunctions or restraining orders, or take such actions, including the acceptance of satisfactory performance bonds, as the court may deem proper.
(4) Any aggrieved person may institute a civil proceeding against any person or enterprise convicted of engaging in activity in violation of Section 97-21-53, 97-21-55, 97-21-57 or 97-23-89. In such proceeding, relief shall be granted in conformity with the principles that govern the granting of injunctive relief from threatened loss or damage in other civil cases, except that no showing of immediate and irreparable injury, loss or damage to the person shall have to be made.
(5) The Attorney General may, upon timely application and subject to the provisions of Sections 1 and 2 of this act, intervene in any civil action or proceeding brought under this section if he certifies that, in his opinion, the action or proceeding is of general public importance. In such action or proceeding, the state shall be entitled to the same relief as if the Attorney General instituted the action or proceeding.
(6) Notwithstanding any other provision of law, a criminal or civil action or proceeding under this article may be commenced at any time within five (5) years after the conduct in violation of law terminates or the cause of action accrues. If a criminal prosecution or civil action or other proceeding is brought, or intervened in, to punish, prevent or restrain any violation of law, the running of the period of limitations prescribed by this section with respect to any cause of action arising under this section which is based, in whole or in part, upon any matter complained of in any such prosecution, action or proceeding shall be suspended during the pendency of such prosecution, action or proceeding and for two (2) years following its termination.
(7) The application of one (1) civil remedy under any provision of this article shall not preclude the application of any other remedy, civil or criminal, under this article or any other provision of law. Civil remedies under this article are supplemental.
SECTION 163. Section 97-32-5, Mississippi Code of 1972, is amended as follows:
97-32-5. It shall be unlawful for any person, or retailer, to sell, barter, deliver or give tobacco products to any individual under eighteen (18) years of age unless the individual under eighteen (18) years of age holds a retailer's license to sell tobacco under Section 27-69-1 et seq., Mississippi Code of 1972.
It shall be an absolute affirmative defense that the person selling, bartering, delivering or giving tobacco products over the counter in a retail establishment to an individual under eighteen (18) years of age in violation of this article had requested and examined a government-issued photographic identification from such person establishing his age as at least eighteen (18) years prior to selling such person a tobacco product. The failure of a seller, barterer, deliverer or giver of tobacco products over the counter in a retail establishment to request and examine photographic identification from a person under eighteen (18) years of age prior to the sale of a tobacco product to such person if the individual is not known to the seller, barterer, deliverer or giver of the tobacco product to be over the age of eighteen (18) years, shall be construed against the seller, barterer, deliverer or giver and form a conclusive basis for the seller's violation of this section.
It shall be an absolute affirmative defense that the person or entity giving tobacco products through the mail to an individual under eighteen (18) years of age in violation of this article had requested and received documentary or written evidence from such person purportedly establishing his age to be at least eighteen (18) years of age.
Any person who violates this section shall be liable as follows: For a first conviction, a fine of Fifty Dollars ($50.00); for a second conviction, a fine of Seventy-five Dollars ($75.00); and for all subsequent convictions, a fine of One Hundred Fifty Dollars ($150.00) shall be imposed.
Any person found in violation of this section shall be issued a citation and the holder of the retailer permit shall be sent notification of this citation by registered mail by the law enforcement agency issuing the citation. Notification shall include the opportunity for hearing before the appropriate court. For a first conviction, the retailer shall be sent a warning letter informing him of the retailer's responsibility in the selling of tobacco products. For a second conviction, the retailer, or retailer's designee, shall be required to enroll in and complete a "Retailer Tobacco Education Program."
For
a third or subsequent violation of this section by any retailer, within one (1)
year of the two (2) prior violations, any retailer's permit issued pursuant to
Section 27-69-1 et seq., Mississippi Code of 1972, may be revoked or suspended
for a period of at least one (1) year after notice and opportunity for
hearing. If said permit is revoked by the * * * Department of Revenue,
the retailer may not reapply for a permit to sell tobacco for a period of six
(6) months. For the purposes of this section, "subsequent
violations" are those committed at the same place of business.
It is the responsibility of all law enforcement officers and law enforcement agencies of this state to ensure that the provisions of this article are enforced.
It shall not be considered a violation of this section on the part of any law enforcement officer or person under eighteen (18) years of age for any law enforcement officer of this state to use persons under eighteen (18) years of age to purchase or attempt to purchase tobacco products for the purpose of monitoring compliance with this section, as long as those persons are supervised by duly authorized law enforcement agency officials.
Any law enforcement agency conducting enforcement efforts undertaken pursuant to this article shall prepare a report as prescribed by the Attorney General which includes the number of unannounced inspections conducted by the agency, a summary of enforcement actions taken pursuant to this article, the name and permit number of the retailer pursuant to Section 27-69-1 et seq., Mississippi Code of 1972, and final judicial disposition on all enforcement actions. Reports shall be forwarded to the Office of the Attorney General within twenty (20) working days of the final judicial disposition.
On
notification from local law enforcement that a retailer has violated this
article so as to warrant a revocation of the retailer's permit, the Attorney
General shall notify in writing the * * * Department of Revenue
within twenty (20) working days.
In
accordance with the procedures of Section 27-69-9, Mississippi Code of 1972,
the * * * Department of Revenue shall initiate revocation
procedures of the retailer's permit. The Office of the Attorney General shall
provide legal assistance in revocation procedures when requested by the * * * Department of Revenue.
SECTION 164. Section 97-33-109, Mississippi Code of 1972, is amended as follows:
97-33-109. (1) The commission shall monitor the conduct or business of licensees, both on a routine scheduled and an unscheduled basis, to the extent necessary to ensure compliance with the provisions of charitable bingo game laws and regulations of the state.
(2) In carrying out its enforcement responsibilities, the commission may:
(a) Inspect and examine all premises in which charitable bingo games are conducted or supplies or equipment for such games are manufactured and distributed;
(b) Inspect all such supplies and equipment in, upon or about such premises;
(c) Seize and remove from such premises and impound such supplies and equipment for the purpose of examination and inspection pursuant to an appropriate court order;
(d) Demand access to and audit and inspect books and records of licensees for the purpose of determining compliance with laws and regulations relative to charitable bingo games;
(e) Conduct in-depth audits and investigations; and
(f) Mandate that internal controls be executed in accordance with the provisions of the Charitable Bingo Law and other applicable laws and regulations.
(3) The commission shall require licensees to maintain records and submit reports.
(4) In addition to license revocation or suspension or any criminal penalty imposed, the commission may assess a fine against any person who violates any law or regulation relative to charitable bingo games. Such a fine shall only be assessed after notice and an opportunity for a hearing to be held.
(5) All departments, commissions, boards, agencies, officers and institutions of the state, and all subdivisions thereof, shall cooperate with the commission in carrying out its enforcement responsibilities.
(6) Except as otherwise authorized in Section 7-5-39, the Attorney General shall be the attorney for the commission in regard to its duties to regulate the Charitable Bingo Law and he shall represent it in all legal proceedings and shall prosecute any civil action for a violation of the provisions of Sections 97-33-51 through 97-33-203 or the rules and regulations of the commission, subject to the provisions of Sections 1 and 2 of this act.
(7) It is the duty of the sheriffs, deputy sheriffs and police officers of this state to assist the commission in the enforcement of the provisions of Sections 97-33-51 through 97-33-203 and to arrest and complain against any person violating the provisions of Sections 97-33-51 through 97-33-203. It is the duty of the district attorneys of this state to prosecute all violations of the provisions of Sections 97-33-51 through 97-33-203 if requested to do so by the commission.
(8) (a) Whenever any person who is a resident of the State of Mississippi has reason to believe that a person or organization is violating or has violated the provisions of Sections 97-33-51 through 97-33-203 and that proceedings would be in the public interest, he may bring an action in the name of the state against such person to restrain by temporary or permanent injunction such violation, upon at least five (5) days' summons before the hearing of the action. The action shall be brought in the chancery or county court of the county in which such violation has occurred or, with consent of the parties, may be brought in the chancery or county court of the county in which the State Capitol is located. The said courts are authorized to issue temporary or permanent injunctions to restrain and prevent violations of Sections 97-33-51 through 97-33-203, and such injunctions shall be issued without bond.
(b) Any person who violates the terms of an injunction issued under this subsection shall forfeit and pay to the state a civil penalty of not more than Five Thousand Dollars ($5,000.00) per violation which shall be payable to the General Fund of the State of Mississippi. For the purposes of this subsection, the chancery or county court issuing an injunction shall retain jurisdiction, and the cause shall be continued, and in such cases the person bringing the action may petition for recovery of civil penalties.
(c) In any action brought under this subsection, if the court finds that a person is willfully violating the provisions of Sections 97-33-51 through 97-33-203, the person bringing the action, upon petition to the court, may recover on behalf of the state a civil penalty of not exceeding Five Hundred Dollars ($500.00) per violation which shall be payable to the General Fund of the State of Mississippi.
(d) No penalty authorized by this subsection shall be deemed to limit the court's powers to insure compliance with its orders, decrees and judgments, or punish for the violations thereof.
(e) For purposes of this subsection, a willful violation occurs when the party committing the violation knew or should have known that his conduct was a violation of the provisions of Sections 97-33-51 through 97-33-203.
SECTION 165. Section 97-37-7, Mississippi Code of 1972, is brought forward as follows:
97-37-7. (1) (a) It shall not be a violation of Section 97-37-1 or any other statute for pistols, firearms or other suitable and appropriate weapons to be carried by duly constituted bank guards, company guards, watchmen, railroad special agents or duly authorized representatives who are not sworn law enforcement officers, agents or employees of a patrol service, guard service, or a company engaged in the business of transporting money, securities or other valuables, while actually engaged in the performance of their duties as such, provided that such persons have made a written application and paid a nonrefundable permit fee of One Hundred Dollars ($100.00) to the Department of Public Safety.
(b) No permit shall be issued to any person who has ever been convicted of a felony under the laws of this or any other state or of the United States. To determine an applicant's eligibility for a permit, the person shall be fingerprinted. If no disqualifying record is identified at the state level, the fingerprints shall be forwarded by the Department of Public Safety to the Federal Bureau of Investigation for a national criminal history record check. The department shall charge a fee which includes the amounts required by the Federal Bureau of Investigation and the department for the national and state criminal history record checks and any necessary costs incurred by the department for the handling and administration of the criminal history background checks. In the event a legible set of fingerprints, as determined by the Department of Public Safety and the Federal Bureau of Investigation, cannot be obtained after a minimum of three (3) attempts, the Department of Public Safety shall determine eligibility based upon a name check by the Mississippi Highway Safety Patrol and a Federal Bureau of Investigation name check conducted by the Mississippi Highway Safety Patrol at the request of the Department of Public Safety.
(c) A person may obtain a duplicate of a lost or destroyed permit upon payment of a Fifteen Dollar ($15.00) replacement fee to the Department of Public Safety, if he furnishes a notarized statement to the department that the permit has been lost or destroyed.
(d) (i) No less than ninety (90) days prior to the expiration date of a permit, the Department of Public Safety shall mail to the permit holder written notice of expiration together with the renewal form prescribed by the department. The permit holder shall renew the permit on or before the expiration date by filing with the department the renewal form, a notarized affidavit stating that the permit holder remains qualified, and the renewal fee of Fifty Dollars ($50.00); honorably retired law enforcement officers shall be exempt from payment of the renewal fee. A permit holder who fails to file a renewal application on or before its expiration date shall pay a late fee of Fifteen Dollars ($15.00).
(ii) Renewal of the permit shall be required every four (4) years. The permit of a qualified renewal applicant shall be renewed upon receipt of the completed renewal application and appropriate payment of fees.
(iii) A permit cannot be renewed six (6) months or more after its expiration date, and such permit shall be deemed to be permanently expired; the holder may reapply for an original permit as provided in this section.
(2) It shall not be a violation of this or any other statute for pistols, firearms or other suitable and appropriate weapons to be carried by Department of Wildlife, Fisheries and Parks law enforcement officers, railroad special agents who are sworn law enforcement officers, investigators employed by the Attorney General, criminal investigators employed by the district attorneys, all prosecutors, public defenders, investigators or probation officers employed by the Department of Corrections, employees of the State Auditor who are authorized by the State Auditor to perform investigative functions, or any deputy fire marshal or investigator employed by the State Fire Marshal, while engaged in the performance of their duties as such, or by fraud investigators with the Department of Human Services, or by judges of the Mississippi Supreme Court, Court of Appeals, circuit, chancery, county, justice and municipal courts, or by coroners. Before any person shall be authorized under this subsection to carry a weapon, he shall complete a weapons training course approved by the Board of Law Enforcement Officer Standards and Training. Before any criminal investigator employed by a district attorney shall be authorized under this section to carry a pistol, firearm or other weapon, he shall have complied with Section 45-6-11 or any training program required for employment as an agent of the Federal Bureau of Investigation. A law enforcement officer, as defined in Section 45-6-3, shall be authorized to carry weapons in courthouses in performance of his official duties. A person licensed under Section 45-9-101 to carry a concealed pistol, who (a) has voluntarily completed an instructional course in the safe handling and use of firearms offered by an instructor certified by a nationally recognized organization that customarily offers firearms training, or by any other organization approved by the Department of Public Safety, (b) is a member or veteran of any active or reserve component branch of the United States of America Armed Forces having completed law enforcement or combat training with pistols or other handguns as recognized by such branch after submitting an affidavit attesting to have read, understand and agree to comply with all provisions of the enhanced carry law, or (c) is an honorably retired law enforcement officer or honorably retired member or veteran of any active or reserve component branch of the United States of America Armed Forces having completed law enforcement or combat training with pistols or other handguns, after submitting an affidavit attesting to have read, understand and agree to comply with all provisions of Mississippi enhanced carry law shall also be authorized to carry weapons in courthouses except in courtrooms during a judicial proceeding, and any location listed in subsection (13) of Section 45-9-101, except any place of nuisance as defined in Section 95-3-1, any police, sheriff or highway patrol station or any detention facility, prison or jail. For the purposes of this subsection (2), component branch of the United States Armed Forces includes the Army, Navy, Air Force, Coast Guard or Marine Corps, or the Army National Guard, the Army National Guard of the United States, the Air National Guard or the Air National Guard of the United States, as those terms are defined in Section 101, Title 10, United States Code, and any other reserve component of the United States Armed Forces enumerated in Section 10101, Title 10, United States Code. The department shall promulgate rules and regulations allowing concealed pistol permit holders to obtain an endorsement on their permit indicating that they have completed the aforementioned course and have the authority to carry in these locations. This section shall in no way interfere with the right of a trial judge to restrict the carrying of firearms in the courtroom.
(3) It shall not be a violation of this or any other statute for pistols, firearms or other suitable and appropriate weapons, to be carried by any out-of-state, full-time commissioned law enforcement officer who holds a valid commission card from the appropriate out-of-state law enforcement agency and a photo identification. The provisions of this subsection shall only apply if the state where the out-of-state officer is employed has entered into a reciprocity agreement with the state that allows full-time commissioned law enforcement officers in Mississippi to lawfully carry or possess a weapon in such other states. The Commissioner of Public Safety is authorized to enter into reciprocal agreements with other states to carry out the provisions of this subsection.
SECTION 166. Section 97-43-9, Mississippi Code of 1972, is amended as follows:
97-43-9. (1) Any circuit court may, after making due provision for the rights of innocent persons, enjoin violations of the provisions of this chapter by issuing appropriate orders and judgments, including, but not limited to:
(a) Ordering any defendant to divest himself of any interest in any enterprise, including real property.
(b) Imposing reasonable restrictions upon the future activities or investments of any defendant, including, but not limited to, prohibiting any defendant from engaging in the same type of endeavor as the enterprise in which he was engaged in violation of the provisions of this chapter.
(c) Ordering the dissolution or reorganization of any enterprise.
(d) Ordering the suspension or revocation of a license or permit granted to any enterprise by any agency of the state.
(e) Ordering the forfeiture of the charter of a corporation organized under the laws of the state, or the revocation of a certificate authorizing a foreign corporation to conduct business within the state, upon finding that the board of directors or a managerial agent acting on behalf of the corporation, in conducting the affairs of the corporation, has authorized or engaged in conduct in violation of this chapter and that, for the prevention of future criminal activity, the public interest requires the charter of the corporation forfeited and the corporation dissolved or the certificate revoked.
(2)
All property, real or personal, including money, used in the course of,
intended for use in the course of, derived from, or realized through, conduct
in violation of a provision of this chapter is subject to civil forfeiture to
the state pursuant to the provisions of Section 97-43-11; provided, however,
that a forfeiture of personal property encumbered by a bona fide security
interest or real property encumbered by a bona fide mortgage, deed of trust,
lien or encumbrance of record shall be subject to the interest of the secured
party or subject to the interest of the holder of the mortgage, deed of
trust, lien * * *
or encumbrance of record if such secured party or holder neither had knowledge
of or consented to the act or omission.
(3) Property subject to forfeiture may be seized by law enforcement officers upon process issued by any appropriate court having jurisdiction over the property. Seizure without process may be made if:
(a) The seizure is incident to an arrest or a search under a search warrant or an inspection under a lawful administrative inspection;
(b)
The property subject to seizure has been the subject of a prior judgment in
favor of the state in a criminal injunction or forfeiture proceeding based upon
this article * * *.
(4) The Attorney General, any district attorney or any state agency having jurisdiction over conduct in violation of a provision of this chapter may institute civil proceedings under this section. In any action brought under this section, the circuit court shall proceed as soon as practicable to the hearing and determination. Pending final determination, the circuit court may at any time enter such injunctions or restraining orders, or take such actions, including the acceptance of satisfactory performance bonds, as the court may deem proper.
(5) Any aggrieved person may institute a civil proceeding under subsection (1) of this section against any person or enterprise convicted of engaging in activity in violation of this chapter. In such proceeding, relief shall be granted in conformity with the principles that govern the granting of injunctive relief from threatened loss or damage in other civil cases, except that no showing of immediate and irreparable injury, loss or damage to the person shall have to be made.
(6)
Any person who is injured by reason of any violation of the provisions of this
chapter shall have a cause of action against any person or enterprise convicted
of engaging in activity in violation of this chapter for threefold the actual
damages sustained and, when appropriate, punitive damages. Such person shall
also recover attorney's * * * fees in the trial and appellate courts and
costs of investigation and litigation, reasonably incurred.
(a) The defendant or any injured person may demand a trial by jury in any civil action brought pursuant to this subsection.
(b) Any injured person shall have a right or claim to forfeited property or to the proceeds derived therefrom superior to any right or claim the state has in the same property or proceeds.
(7) The Attorney General may, upon timely application and subject to the provisions of Sections 1 and 2 of this act, intervene in any civil action or proceeding brought under subsections (5) or (6) of this section if he certifies that, in his opinion, the action or proceeding is of general public importance. In such action or proceeding, the state shall be entitled to the same relief as if the Attorney General instituted the action or proceeding.
(8) Notwithstanding any other provision of law, a criminal or civil action or proceeding under this chapter may be commenced at any time within five (5) years after the conduct in violation of a provision of this chapter terminates or the cause of action accrues. If a criminal prosecution or civil action or other proceeding is brought, or intervened in, to punish, prevent or restrain any violation of the provisions of this chapter, the running of the period of limitations prescribed by this section with respect to any cause of action arising under subsections (5) or (6) of this section which is based, in whole or in part, upon any matter complained of in any such prosecution, action or proceeding shall be suspended during the pendency of such prosecution, action or proceeding and for two (2) years following its termination.
(9) The application of one (1) civil remedy under any provision of this chapter shall not preclude the application of any other remedy, civil or criminal, under this chapter or any other provision of law. Civil remedies under this chapter are supplemental.
SECTION 167. Section 97-44-5, Mississippi Code of 1972, is amended as follows:
97-44-5. (1) A civil cause of action is hereby created in favor of any public authority expending money, allocating or reallocating police, firefighting, emergency or other personnel or resources, or otherwise incurring any loss, deprivation or injury, or sustaining any damage, impairment or harm whatsoever, proximately caused by any criminal activity.
(2) The cause of action created by this chapter shall lie against:
(a) Any streetgang in whose name, for whose benefit, on whose behalf or under whose direction the act was committed; and
(b) Any gang officer or director who causes, orders, suggests, authorizes, consents to, agrees to, requests, acquiesces in or ratifies any such act; and
(c) Any gang member who, in the furtherance of or in connection with, any gang-related activity, commits any such act; and
(d) Any gang officer, director, leader or member.
(3) The cause of action authorized by this chapter shall be brought by the Attorney General, subject to the provisions of Sections 1 and 2 of this act, the district attorney or attorneys, or the county attorney, or by his or their respective designees. This cause of action shall be in addition to any other civil or criminal proceeding authorized by the laws of this state or by federal law, and shall not be construed as requiring the prosecutor to elect a civil, rather than criminal, remedy, or as replacing any other cause of action. Liability of the gang, its officers, directors, leaders and members shall be joint and several subject only to the apportionment and allocation of punitive damage authorized under Section 97-44-13.
SECTION 168. Section 97-45-2, Mississippi Code of 1972, is amended as follows:
97-45-2. (1) For the purposes of this chapter, "identity theft" includes crimes chargeable under the following provisions of law:
(a) Section 97-9-79, which relates to false information.
(b) Section 97-19-83, which relates to fraud by mail or other means of communication.
(c) Section 97-19-85, which relates to the fraudulent use of identity social security number, credit card or debit card number or other identifying information.
(d) Section 97-45-19, which relates to obtaining personal identity information of another person without authorization.
(2) (a) In conducting identity theft investigations, the Attorney General shall have the authority to issue and serve subpoenas to any person in control of any designated documents for the production of such documents, including, but not limited to, writings, drawings, graphs, charts, photographs, phono-records and other data compilations from which information can be obtained, or translated through detection devices into reasonably usable form. Such subpoenas shall require the named person, his agent or attorney, to appear and deliver the designated documents to a location in the county of his residence unless the court for good cause shown directs that the subpoena be issued for the person to deliver such documents to a location outside of the county of his residence. Mere convenience of the Attorney General shall not be considered good cause. The Attorney General or his designee shall have the authority to inspect and copy such documents. Such subpoenas shall be issued only upon the ex parte and in camera application of the Attorney General to the circuit or chancery court of the county of residence of the person in control of the documents or the circuit or chancery court of the county where the person in control of the documents may be found, and only upon a showing that the documents sought are relevant to a criminal investigation under this chapter or may lead to the discovery of such relevant evidence. Thereafter said court shall have jurisdiction to enforce or quash such subpoenas and to enter appropriate orders thereon, and nothing contained in this section shall affect the right of a person to assert a claim that the information sought is privileged by law.
(b) A subpoena issued pursuant to this subsection shall be in substantially the following form:
SUBPOENA TO PRODUCE DOCUMENTS
PURSUANT TO AN INVESTIGATION BY THE ATTORNEY GENERAL
TO:
YOU ARE HEREBY COMMANDED to appear before the Attorney General of the State of Mississippi or his designated staff attorney at the place, date and time specified below in an investigation being conducted by the Attorney General pursuant to Section ______, Mississippi Code of 1972:
Place ____________ Date and Time ____________
YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s) ____________________________________.
You are advised that the ___ Court of the ___ Judicial District of __________ County, Mississippi, has approved the ex parte and in camera application of the Attorney General to issue this subpoena, and jurisdiction to enforce and/or quash the subpoena and to enter appropriate orders thereon is statutorily vested in the said court; enforcement and penal provisions applicable to an Attorney General's investigation include those set forth in Section ______, Mississippi Code of 1972; and disclosure of testimony and/or records coming into possession of the Attorney General pursuant to this subpoena shall be limited by and subject to the provisions of said section (for informational purposes, these cited statutes are reproduced on the reverse side of this subpoena).
You may wish to consult an attorney in regard to this subpoena. You have certain state and federal constitutional rights, including your protection against self-incrimination and unreasonable search and seizure which this subpoena may affect.
ISSUED BY AND UNDER SEAL OF THE ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI, this the ___ day of __________, 20___.
(SEAL)________________________________
(c) Following service of any subpoena, pursuant to the provisions of this subsection, a record of the return shall be made and kept by the Attorney General and subject only to such disclosure as may be authorized pursuant to the provisions of this section.
(3) Enforcement and penal provisions applicable to an investigation under this section shall include the following:
(a) If a person who has been served with a subpoena, which has been issued and served upon him in accordance with the provisions of this section, shall fail to deliver or have delivered the designated documents at the time and place required in the subpoena, on application of the Attorney General the circuit or chancery court having approved the issuance of the subpoena may issue an attachment for such person, returnable immediately, or at such time and place as the court may direct. Bond may be required and fine imposed and proceedings had thereon as in the case of a subpoenaed witness who fails to appear in circuit or chancery court.
(b) Every person who shall knowingly and willfully obstruct, interfere with or impede an investigation under this section by concealing or destroying any documents, papers or other tangible evidence which are relevant to an investigation under this section shall be guilty of a felony and, upon conviction, shall be punished by a fine of not more than Five Thousand Dollars ($5,000.00) or by imprisonment for not more than five (5) years, or by both such fine and imprisonment.
(c) Every person who shall knowingly and willfully endeavor, by means of bribery, force or intimidation, to obstruct, delay or prevent the communication of information to any agent or employee of the Office of the Attorney General or who injures another person for the purpose of preventing the communication of such information or an account of the giving of such information relevant to an investigation under this section shall be guilty of a felony and, upon conviction, shall be punished by a fine of not more than Five Thousand Dollars ($5,000.00) or by imprisonment for not more than five (5) years, or by both such fine and imprisonment.
(d) The provisions of paragraphs (a), (b) and (c) of this subsection shall not prohibit the enforcement of, or prosecution under, any other statutes of this state.
(4) (a) If any person shall refuse, or is likely to refuse, on the basis of his privilege against self-incrimination, to produce the designated documents as requested by a subpoena issued under this section or issued by a court, the Attorney General may request the court, ex parte and in camera, to issue an order requiring such person to produce the documents or information which he refuses to give or provide on the basis of his privilege against self-incrimination. The Attorney General may request said order under this subsection when, in his judgment:
(i) The documents sought from such individual may be necessary to the public interest; and
(ii) Such individual has refused or is likely to refuse to produce the designated document on the basis of his privilege against self-incrimination.
Following such request, an order shall issue in accordance with this section requiring such person to produce the documents which he refuses to produce on the basis of his privilege against self-incrimination.
(b) Whenever a witness refuses, on the basis of his privilege against self-incrimination, to produce documents, and the court issues to the witness an order under paragraph (a) of this subsection, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination, but no documents or information compelled under the aforesaid order, or any information directly or indirectly derived from such documents may be used against the witness in any criminal proceeding, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.
(5) Documents in the possession of the Attorney General gathered pursuant to the provisions of this section and subpoenas issued by him shall be maintained in confidential files with access limited to prosecutorial and other law enforcement investigative personnel on a "need to know" basis and shall be exempt from the provisions of the Mississippi Public Records Act of 1983, except that upon the filing of an indictment or information, or upon the filing of an action for recovery of property, funds or fines, such documents shall be subject to such disclosure as may be required pursuant to the applicable statutes or court rules governing the trial of any such judicial proceeding.
(6) No person, including the Attorney General, a member of his staff, prosecuting attorney, law enforcement officer, witness, court reporter, attorney or other person, shall disclose to an unauthorized person documents, including subpoenas issued and served, gathered by the Attorney General pursuant to the provisions of this section, except that upon the filing of an indictment or information, or upon the filing of an action for recovery of property, funds or fines, or in other legal proceedings, subject to the provisions of Sections 1 and 2 of this act, such documents shall be subject to such disclosure as may be required pursuant to applicable statutes and court rules governing the trial of any such judicial proceeding. In event of an unauthorized disclosure of any such documents gathered by the Attorney General pursuant to the provisions of this section, the person making any such unauthorized disclosure shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine of not more than One Thousand Dollars ($1,000.00), or imprisonment of not more than six (6) months, or by both such fine and imprisonment.
(7) The powers of the Attorney General under this section shall not diminish the powers of local authorities to investigate or prosecute any type of identity theft crime or any other criminal conduct within their respective jurisdictions, and the provisions of this section shall be in addition to the powers and authority previously granted the Attorney General by common, constitutional, statutory or case law.
SECTION 169. Section 99-27-31, Mississippi Code of 1972, is amended as follows:
99-27-31. It shall be the duty of every railroad company, express company, or other carrier, and of every person, firm or corporation, that shall transport any of the alcohol or wine authorized, and who shall deliver such alcohol or wine or either of them in this state, to file with the clerk of the circuit court of the county in which said alcohol or wine is delivered, a statement, either printed or plainly written, or typewritten on stout paper, correctly stating the date on which the alcohol or wine was delivered, the name and postoffice address of the consignee and consignor, the place of delivery, and to whom delivered, and the kind and amount of such liquors delivered, such statement to be filed within three (3) days after the date of delivery of such liquor. If said statement is in writing, it shall be in a fair and legible hand, and the names of the consignee and the consignor and of the party who obtained delivery shall be truly ascertained and furnished in such way as to avoid mistakes in names. If any person, firm or corporation making delivery shall neglect to file with the circuit clerk such statement or statements, then it shall be the duty of the circuit clerk to make written demand upon such person, firm or corporation, to comply with the requirements of this section, such demand to be served by the sheriff and return made by him to the circuit clerk upon a copy of the original demand. Upon further refusal or noncompliance, it shall be the duty of the circuit clerk to promptly inform the Attorney General of the state of such failure or refusal, and it shall then be the duty of the Attorney General, subject to the provisions of Sections 1 and 2 of this act, either himself to file, or to direct and secure some district attorney or county attorney whose duty it is to prosecute crime in the county, to file a suit in the name of the state.
SECTION 170. Section 99-29-9, Mississippi Code of 1972, is amended as follows:
99-29-9. The bond provided for by Section 97-35-39 shall be made payable to the State of Mississippi, and may be sued upon, in case of breach, in the name of the state, and in the circuit court, and such suit shall be triable at the first term of the circuit court after the breach occurs, provided the sureties on such bond are summoned five (5) days before court meets. And such suit shall be conducted by the district attorney, for the state, in the circuit court, and by the Attorney General, subject to the provisions of Sections 1 and 2 of this act, in the Supreme Court. Whenever any bond so taken shall be forfeited by the misconduct of the said vagrant, there shall be no recovery of same less than the face value of the bond, unless the vagrant shall be delivered up to the circuit court for future trial, as provided in Section 99-29-11, in which event the court may, in its discretion, limit the amount of recovery on the bond to the cost of suit and a penalty of Fifty Dollars ($50.00).
SECTION 171. Section 99-38-11, Mississippi Code of 1972, is amended as follows:
99-38-11. (1) It shall be unlawful for any person, firm, corporation, partnership, association or other legal entity to fail to comply with the provisions of this chapter.
(2) Any person, firm, corporation, partnership, association or other legal entity violating the provisions of this chapter shall be guilty of a misdemeanor and, upon conviction of the violation, shall be punished as for a misdemeanor.
(3) Each day any such person, firm, corporation, partnership, association or other legal entity continues in violation of the provisions of this chapter shall constitute a separate offense.
(4) Any action taken by any person accused or convicted of a crime or who enters a plea of guilty of a crime, or by a person or legal entity with whom any such person contracts as set forth in Section 99-38-5, whether by way of execution of a contract or agreement outside of this state, execution of a power of attorney, donation, creation of corporate entities, or otherwise, to defeat the purpose of this chapter shall be null and void as against the public policy of the state.
(5) In addition to such powers and duties of the Attorney General of this state as are otherwise authorized and prescribed by law, the Attorney General, subject to the provisions of Sections 1 and 2 of this act, shall be authorized to bring a civil action in any court of competent jurisdiction to enforce the obligations of a contracting party to make payment to the Treasurer of such monies as are required to be paid to the Treasurer under the provisions of Section 99-38-5.
SECTION 172. Section 99-41-13, Mississippi Code of 1972, is brought forward as follows:
99-41-13. Any claimant aggrieved by a final decision of the Attorney General shall be entitled to judicial review thereof in the manner provided in this section.
(a) An appeal may be taken by such claimant to the circuit court of the claimant's residence or the Circuit Court of the First Judicial District of Hinds County by filing a petition with the clerk of the court and executing and filing bond payable to the State of Mississippi with sufficient sureties to be approved by the clerk of the court, conditioned upon the payment of all costs of appeal, including the cost of preparing the transcript of the hearing before the Attorney General. The petition and bond shall be filed within thirty (30) days of the receipt of the final decision of the Attorney General. Upon approval of the bond, the clerk of the court shall notify the Office of the Attorney General, which shall prepare its record in the matter and transmit it to the circuit court.
(b) The scope of review of the circuit court in such cases shall be limited to a review of the record made before the Attorney General to determine if the action of the Attorney General is unlawful for the reason that it was:
(i) Not supported by a preponderance of the evidence;
(ii) Arbitrary and capricious; or
(iii) In violation of a statutory right of claimant.
(c) No relief shall be granted based upon the court's finding of harmless error.
(d) Any party aggrieved by action of the circuit court may appeal to the Supreme Court in the manner provided by law.
SECTION ___. The provisions of this act shall be applicable to the sections of this act, and shall not be applicable to any section not included in this act.
SECTION 173. This act shall take effect and be in force from and after its passage.