2007 Regular Session
To: Transportation; Appropriations
By: Representative Davis
AN ACT TO AMEND SECTION 57-43-15, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE LEGISLATURE SHALL APPROPRIATE ONE MILLION DOLLARS EACH MONTH TO THE MISSISSIPPI HIGHWAY-RAILROAD GRADE CROSSING SAFETY ACCOUNT WITHIN THE RAILROAD REVITALIZATION FUND AND TO PRESCRIBE CERTAIN ADDITIONAL PURPOSES FOR WHICH MONIES IN THE ACCOUNT MAY BE EXPENDED; TO AMEND SECTION 65-1-175, MISSISSIPPI CODE OF 1972, TO DELETE THE REQUIREMENT FOR A PUBLIC HEARING BY THE MISSISSIPPI DEPARTMENT OF TRANSPORTATION BEFORE ABOLISHMENT OF A ROADWAY/RAILWAY CROSSING WHEN THE PUBLIC ROADWAY AUTHORITY VACATES THE ROADWAY; TO AMEND SECTION 77-9-481, MISSISSIPPI CODE OF 1972, TO AUTHORIZE INSPECTORS EMPLOYED BY THE MISSISSIPPI DEPARTMENT OF TRANSPORTATION TO ENFORCE GRADE CROSSING LAWS; TO AMEND SECTIONS 77-9-249 AND 63-9-11, MISSISSIPPI CODE OF 1972, TO PRESCRIBE A PROCEDURE FOR A PERSON CONVICTED OF CERTAIN ROADWAY/RAILWAY TRAFFIC REGULATIONS TO HAVE THE RECORDS OF SUCH CONVICTION EXPUNGED UPON COMPLETION OF AN OPERATION LIFESAVER COURSE APPROVED BY THE MISSISSIPPI TRANSPORTATION COMMISSION; TO AMEND SECTIONS 97-25-4, 97-25-5 AND 97-25-35, MISSISSIPPI CODE OF 1972, TO INCREASE PENALTIES AND REQUIRE RESTITUTION FOR CERTAIN CRIMES RELATING TO RAILROAD PROPERTY; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 57-43-15, Mississippi Code of 1972, is amended as follows:
57-43-15. (1) There is established within the Railroad Revitalization Fund a new account to be entitled the Mississippi Highway-Railroad Grade Crossing Safety Account. The account shall be administered by the Mississippi Department of Transportation and shall consist of (a) One Million Dollars ($1,000,000.00) each month appropriated by the Legislature from the State General Fund; and (b) thirty-five percent (35%) of collections from the locomotive fuel tax imposed under Section 27-59-307 for the previous year. Unexpended amounts remaining in the account at the end of a fiscal year shall not lapse into the State General Fund; and any interest earned on amounts in the account shall be deposited to the credit of the account.
(2) The Mississippi Department of Transportation, in cooperation with the railroads operating in Mississippi, shall promulgate rules to ensure equitable allocation of the funds described in subsection (1) of this section to projects throughout the state, and shall consider the proportionate number of main line track miles of each railroad and the number of public roadway/railroad grade crossings on each railroad's main line. Expenditure of monies from the Mississippi Highway-Railroad Grade Crossing Safety Account shall be limited to the following purposes:
(a) Financial aid for closure of public roadway/railroad grade crossings;
(b) Realignment of construction costs of roadways being rerouted to facilitate a closure of a public roadway/railroad grade crossing;
(c) Monies to match federal or other funds for a grade separation eliminating an at-grade crossing of a public roadway and railroad; * * *
(d) Installation, maintenance or upgrade of highway-railroad grade crossing signals, at the discretion of the Mississippi Transportation Commission, based upon the Federal Railroad Administration ranking of all Mississippi highway-railroad grade crossings. Not less than ten percent (10%) of the monies necessary to defray the costs of such installations must be federal funds;
(e) Installation of appropriate warning signs. Not less than ten percent (10%) of the monies necessary to defray the costs of such installations must be federal funds;
(f) Separation of grades of highway/railroad crossings;
(g) Improvement of any grade crossing including the necessary roadway approaches thereto of any railroad across a public road highway;
(h) Construction, reconstruction, repair or replacement of the grade crossing surface structure; and
(i) Installation of an automatic advance warning signal alerting a motorist that a grade crossing is ahead.
(3) The Mississippi Department of Transportation shall consider all requests from the state's diagnostic review of public roadway/railroad grade crossings and from individual railroads for expenditure of funds for the purposes described in subsection (2) of this section, and shall establish uniform criteria and guidelines relating to such crossings and the expenditure of funds.
SECTION 2. Section 65-1-175, Mississippi Code of 1972, is amended as follows:
65-1-175. (1) The jurisdiction of the Mississippi Department of Transportation shall be exclusive with respect to public roadway/railroad crossings either at grade or otherwise except to the extent that its jurisdiction is preempted by valid federal statute, regulation or order.
(2) The Mississippi Department of Transportation shall have power, upon its own motion or upon complaint filed, after having made proper investigation, and after notice and hearing, if requested, to abolish any public roadway/railroad crossing heretofore or hereafter established, to vacate and close that part of the roadway on such crossing abolished, and to erect barricades across the roadway in such a manner as to prevent the use of such crossing as a roadway, when, in the opinion of the department, the public necessity served by the crossing in question is not such as to justify the further retention thereof. In any event, if a roadway/railway crossing is the subject of closure proceedings, both the local governmental entity and the rail carrier shall be given formal written notice by the department before any hearing is conducted by the department. However, a public hearing by the department to abolish a crossing shall not be required when the public roadway authority in interest vacates the roadway. In such instances, the rail carrier, following notification to the department and roadway authority, shall remove any grade crossing warning devices and the grade crossing surface.
(3) The Mississippi Department of Transportation shall have power, upon its own motion, or upon complaint, and after having made proper investigation and after notice and hearing, if requested, to require the installation of adequate and appropriate luminous reflective warning signs, luminous flashing signals, crossing gates illuminated at night, or other warning devices in order to promote the health and safety of the public. Luminous flashing signals or crossing gate devices heretofore installed at grade crossings and those installations hereafter approved by the department shall be deemed adequate and appropriate. The department shall have authority to determine the number, type and location of such signs, signals, gates or other protective devices which shall conform as near as may be with generally recognized national standards, and the department shall have authority to prescribe the division of the cost of the installation and subsequent maintenance of such signs, signals, gates or other warning devices between the rail carrier or carriers, the public highway authority in interest and the Mississippi Department of Transportation. In no event shall any costs assessed against either the public highway authority in interest or the rail carrier exceed ten percent (10%) of the costs of the materials and installation.
(4) Nothing in this section shall be construed as amending, repealing or modifying any duty or responsibility that railroads had, if any, immediately before the effective date of this act with regard to any applicable state or federal laws, statutes, regulations or orders pertaining to the maintenance of signals, signs and warning devices at roadway/railroad crossings.
SECTION 3. Section 77-9-481, Mississippi Code of 1972, is amended as follows:
77-9-481. The inspectors, employed pursuant to the authority granted in Section 65-1-173, shall be responsible for enforcing and investigating all violations of the railroad laws, and the rules, regulations and general orders of the Mississippi Transportation Commission promulgated thereunder. In the performance of their duties such employees shall give particular attention to the enforcement of the commission's safety rules and regulations; blocking of rights-of-way; enforcement of grade crossing laws; the inspection of all equipment, rights-of-way, roadbed and tracks; and the requirement respecting certificate of public convenience and necessity, permits or other laws affecting the operation of the railroad.
SECTION 4. Section 77-9-249, Mississippi Code of 1972, is amended as follows:
77-9-249. (1) Whenever any person driving a vehicle approaches a railroad grade crossing under any of the circumstances stated in this subsection, the driver of such vehicle shall stop within fifty (50) feet but not less than fifteen (15) feet from the nearest rail of such railroad, and shall not proceed until he can do so safely. The foregoing requirements shall apply when one or more of the following circumstances exists:
(a) A clearly visible electric or mechanical signal device gives warning of the immediate approach of a railroad train; or
(b) A crossing gate is lowered or when a human flagman gives or continues to give a signal of the approach or passage of a railroad train; or
(c) A railroad train approaching within approximately nine hundred (900) feet of the highway crossing emits a signal in accordance with Section 77-9-225, and such railroad train, by reason of its speed or nearness to such crossing, is an immediate hazard; or
(d) An approaching railroad train is plainly visible and is in hazardous proximity to such crossing.
(2) No person shall drive any vehicle through, around or under any crossing gate or barrier at a railroad crossing while such gate or barrier is closed or is being opened or closed.
(3) In the trial of all actions to recover personal injury or property damages, sustained by any driver of such vehicles for collision of said vehicle and train in which action it may appear that the said driver may have violated any of the provisions hereof, the question of whether or not the said violation was the sole or approximate cause of the accident and injury shall be for the jury to determine. The violation of this section shall not of itself defeat recovery, and the question of negligence or the violation aforesaid shall be left to the jury; and the comparative negligence statutes and prima facie statute of this state shall apply in these cases as in other cases of negligence.
(4) At any railroad grade crossing provided with visible railroad crossbuck signs without automatic electric or mechanical signal devices, crossing gates or a human flagman giving a signal of the approach or passage of a train, the driver of a vehicle shall, in obedience to such railroad crossbuck sign, yield the right-of-way and slow to a speed reasonable for the existing conditions, and shall stop if required for safety at a clearly marked stop line, or if no stop line, within fifty (50) feet, but not less than fifteen (15) feet, from the nearest rail of the railroad, and shall not proceed until he can do so safely.
(5) Every person, company or corporation violating the provisions of this section shall be guilty of a misdemeanor and, upon conviction, shall be fined not less than Two Hundred Fifty Dollars ($250.00) nor more than Five Hundred Dollars ($500.00), or imprisoned not more than thirty (30) days, or both such fine and imprisonment, in the discretion of the court.
(6) A person convicted for a violation of this section may have the records of his conviction expunged upon satisfactory completion of an Operation Lifesaver course as provided under Section 63-9-11.
SECTION 5. Section 63-9-11, Mississippi Code of 1972, is amended as follows:
63-9-11. (1) It is a misdemeanor for any person to violate any of the provisions of Chapter 3, 5 or 7 of this title, unless such violation is by such chapters or other law of this state declared to be a felony.
(2) Every person convicted of a misdemeanor for a violation of any of the provisions of such chapters for which another penalty is not provided shall for first conviction thereof be punished by a fine of not more than One Hundred Dollars ($100.00) or by imprisonment for not more than ten (10) days; for a second such conviction within one (1) year thereafter such person shall be punished by a fine of not more than Two Hundred Dollars ($200.00) or by imprisonment for not more than twenty (20) days or by both such fine and imprisonment; upon a third or subsequent conviction within one (1) year after the first conviction such person shall be punished by a fine of not more than Five Hundred Dollars ($500.00) or by imprisonment for not more than six (6) months or by both such fine and imprisonment.
(3) (a) Whenever a person not covered under Section 63-1-55 is charged with a misdemeanor violation of any of the provisions of Chapter 3, 5 or 7 of this title or of Section 77-9-249, the person shall be eligible to participate in not less than four (4) hours of a traffic safety violator course and thereby have no record of the violation on the person's driving record if the person meets all the following conditions:
(i) The defendant has a valid Mississippi driver's license or permit.
(ii) The defendant has not had a conviction of a violation under Chapter 3, 5 or 7 of this title or of Section 77-9-249 within three (3) years before the current offense; any conviction entered before October 1, 2002, for a violation under Chapter 3, 5 or 7 of this title, or before July 1, 2007, for a violation of Section 77-9-249, does not constitute a prior offense for the purposes of this subsection (3).
(iii) The defendant's public and nonpublic driving record as maintained by the Department of Public Safety does not indicate successful completion of a traffic safety violator course under this section in the three-year period before the offense.
(iv) The defendant files an affidavit with the court stating that he is not disqualified under paragraph (a)(ii) of this subsection (3); the defendant is not in the process of taking a course under this section; and the defendant has not completed a course under this section that is not yet reflected on the defendant's public or nonpublic driving record.
(v) The offense charged is for a misdemeanor offense under Chapter 3, 5 or 7 of this title or of Section 77-9-249.
(vi) The defendant pays the applicable fine, costs and any assessments required by law to be paid upon conviction of such an offense.
(vii) The defendant pays to the court an additional fee of Ten Dollars ($10.00) to elect to proceed under the provisions of this subsection (3).
(b) (i) 1. An eligible defendant may enter a plea of nolo contendere or guilty in person or in writing and present to the court, in person or by mail postmarked on or before the appearance date on the citation, an oral or written request to participate in a course under this subsection (3).
2. The court shall withhold acceptance of the plea and defer sentencing in order to allow the eligible defendant ninety (90) days to successfully complete not less than four (4) hours of a court-approved traffic safety violator course at the cost of the defendant. Upon proof of successful completion entered with the court, the court shall dismiss the prosecution and direct that the case be closed. The only record maintained thereafter shall be the nonpublic record required under Section 63-9-17 solely for use by the courts in determining eligibility under this subsection (3).
(ii) If a person pleads not guilty to a misdemeanor offense under any of the provisions of Chapter 3, 5 or 7 of this title or of Section 77-9-249 but is convicted, and the person meets all the requirements under paragraph (a) of this subsection, upon request of the defendant the court shall suspend the sentence for such offense to allow the defendant forty-five (45) days to successfully complete not less than four (4) hours of a court-approved traffic safety violator course at his own cost. Upon successful completion by the defendant of the course, the court shall set the conviction aside, dismiss the prosecution and direct that the case be closed. The court on its own motion shall expunge the record of the conviction, and the only record maintained thereafter shall be the nonpublic record required under Section 63-9-17 solely for use by the courts in determining an offender's eligibility under this subsection (3).
(c) An out-of-state resident shall be allowed to complete a substantially similar program in his home state, province or country provided the requirements of this subsection (3) are met, except that the necessary valid driver's license or permit shall be one issued by the home jurisdiction.
(d) A court shall not approve a traffic safety violator course under this subsection (3) that does not supply at least four (4) hours of instruction, an instructor's manual setting forth an appropriate curriculum, student workbooks, some scientifically verifiable analysis of the effectiveness of the curriculum and provide minimum qualifications for instructors. However, the curriculum for a traffic violator course for a person convicted of a violation of Section 77-9-249, 63-3-1007, 63-3-1009, 63-3-1011 or 63-3-1013 shall be prepared and presented by an Operation Lifesaver instructor approved by the Mississippi Transportation Commission.
(e) A court shall inform a defendant making inquiry or entering a personal appearance of the provisions of this subsection (3).
(f) The Department of Public Safety shall cause notice of the provisions of this subsection (3) to be available on its official web site.
(g) Failure of a defendant to elect to come under the provisions of this subsection (3) for whatever reason, in and of itself, shall not invalidate a conviction.
(h) No employee of the sentencing court shall personally benefit from a defendant's attendance of a traffic safety violator course. Violation of this prohibition shall result in termination of employment.
(i) The additional fee of Ten Dollars ($10.00) imposed under this subsection (3) shall be forwarded by the court clerk to the State Treasurer for deposit into a special fund created in the State Treasury. Monies in the special fund may be expended by the Department of Public Safety, upon legislative appropriation, to defray the costs incurred by the department in maintaining the nonpublic record of persons who are eligible for participation under the provisions of this subsection (3).
(4) The provisions of subsection (3) of this section shall not be applicable to violation of any of the provisions of Chapter 3, 5 or 7 of this title committed by the holder of a commercial driver's license issued under the Mississippi Commercial Driver's License Law, regardless of whether the violation occurred while operating a commercial motor vehicle or some other motor vehicle.
SECTION 6. Section 97-25-4, Mississippi Code of 1972, is amended as follows:
97-25-4. (1) Except as otherwise provided in subsection (2) of this section, it shall be unlawful for any person to do any of the following acts without first having obtained written permission from the owner or operator of the railroad line:
(a) To attempt to board or disembark from a moving freight train;
(b) To damage or deface, or attempt to damage or deface, railroad track, signals, switches, buildings, structures, bridges, right-of-way, wire lines, motive power, rolling stock or other property; or
(c) To dump, or cause to be dumped, upon railroad right-of-way any paper, ashes, sweepings, household wastes, glass, metal, tires, mattresses, furniture, dangerous substances or any other refuse or substance of any kind.
(2) Subsection (1) of this section shall not apply to:
(a) Railroad employees engaged in the performance of their duties; or
(b) Representatives of utilities or other agencies with easements across or along the railroad in the performance of their duties.
(3) Any person who violates the provisions of this section shall be guilty of a misdemeanor, and upon conviction thereof, be punished by imprisonment for not more than thirty (30) days or by a fine of not less than One Hundred Dollars ($100.00) but not more than Four Hundred Dollars ($400.00), or both, and may be required to pay any clean-up costs. In addition, any person who is convicted for a violation of subsection (1)(b) or subsection (1)(c) of this section shall be ordered by the court to make restitution to the owners or operators of the railroad line or property in an amount determined by the court to compensate for all damages caused by such person and all costs related to cleanup necessitated as a result of such person's unlawful conduct.
(4) The penalties provided for in this section shall be in addition to any other penalties provided by law for the same or similar acts.
(5) As used in this section the term "right-of-way" means track, roadbed and adjacent property which would be readily recognizable to a reasonable person as railroad property.
SECTION 7. Section 97-25-5, Mississippi Code of 1972, is amended as follows:
97-25-5. If any person shall willfully obliterate, injure or destroy any railroad-gate, warning-signals, cattle-gap or any board or sign erected or maintained by a railroad company in pursuance of law, he shall be fined not less than One Hundred Dollars ($100.00) nor more than Five Hundred Dollars ($500.00), or be imprisoned in the county jail not exceeding three (3) months, or both. In addition, any person who is convicted for a violation of this section shall be ordered by the court to make restitution to the owners or operators of the railroad line or property in an amount determined by the court to compensate for all damages caused by such person and all costs related to cleanup necessitated as a result of such person's unlawful conduct.
SECTION 8. Section 97-25-35, Mississippi Code of 1972, is amended as follows:
97-25-35. If any person shall maliciously remove, take, steal, change or in any manner interfere with any railroad transmission line, signaling device, microwave tower or any of the parts or attachments belonging to any communication or signaling device owned, leased or used by any railroad or transportation company, he shall, on conviction, be fined not more than Three Thousand Dollars ($3,000.00), or shall be imprisoned not more than five (5) years, or both. In addition, any person who is convicted for a violation of this section shall be ordered by the court to make restitution to the owners or operators of the railroad line or property in an amount determined by the court to compensate for all damages caused by such person and all costs related to cleanup necessitated as a result of such person's unlawful conduct.
SECTION 9. This act shall take effect and be in force from and after July 1, 2007.