2021 Regular Session
To: Judiciary, Division A
By: Senator(s) Fillingane, England, McCaughn
AN ACT TO AMEND SECTION 7-5-59, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE ATTORNEY GENERAL TO PROSECUTE PUBLIC OFFICIAL CORRUPTION CASES UPON THE OFFICIAL REQUEST BY THE STATE AUDITOR; TO AMEND SECTION 7-5-37, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 7-5-59, Mississippi Code of 1972, is amended 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.
crime" and "official corruption" * * *
include crimes chargeable
under the following provisions of law:
(i) Paragraphs (b)
and (c) of * * *
subsection (4) of this section, which * * * relate to obstruction of official
corruption and 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 * * *
Mississippi Transportation Commission
and the defrauding of the state by * * * Mississippi Transportation 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.
(xv) Any crime investigated under the authority of Section 7-7-211.
crime * * *
investigation" or "official corruption investigation"
means an investigation into any illegal act or acts defined as white-collar
crime or official corruption.
crimes * * *
investigation" means an investigation into any illegal act or acts
defined as computer crime.
means * * *
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 * * *
, are in the protection of public rights, and
prosecute, upon official request by the Office of the State Auditor,
investigations conducted under the authority of Section 7-7-211.
(3) (a) In conducting official corruption, 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 section 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
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___.
(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 * * *
issued and served upon him in
accordance with the provisions of this section * * * fails 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 * * *
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, 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 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 official corruption, 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 2. 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 or her 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, including, upon official request by the Office of the State Auditor, the prosecution of investigations conducted under the authority of Section 7-7-211. He or she may require the service or assistance of any district attorney in and about such matters or suits.
SECTION 3. This act shall take effect and be in force from and after its passage.