MISSISSIPPI LEGISLATURE
2023 Regular Session
To: Judiciary, Division B
By: Senator(s) Simmons (12th), Hickman
AN ACT TO CREATE NEW SECTION 99-19-71.1, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE AUTOMATIC EXPUNCTION OF CONVICTIONS FOR THE POSSESSION OF MARIJUANA WHERE THE AMOUNT OF MARIJUANA WAS EQUAL TO OR LESS THAN THE LEGAL LIMIT OF POSSESSION FOR MEDICAL CANNABIS; TO PROVIDE FOR THE AUTOMATIC EXPUNCTION OF THE RECORD OF ANY CASE WHERE THE ONLY CHARGES WERE FOR THE POSSESSION OF MARIJUANA OR ANY REFERENCE TO A CHARGE OF POSSESSION OF MARIJUANA IN THE RECORD OF ANY CASE IN WHICH AN ARREST WAS MADE, THE PERSON ARRESTED WAS RELEASED AND THE CASE WAS DISMISSED OR THE CHARGES WERE DROPPED OR THERE WAS NO DISPOSITION OF SUCH CASE, OR THE PERSON WAS FOUND NOT GUILTY AT TRIAL; TO ESTABLISH A PROCEDURE FOR THE EXPUNCTIONS; TO PROVIDE NOTICE TO PROSECUTORS; TO AMEND SECTIONS 25-7-25 AND 81-18-9, MISSISSIPPI CODE OF 1972, TO MAKE MINOR NONSUBSTANTIVE CHANGES TO CONFORM; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The following shall be codified as Section 99-19-71.1, Mississippi Code of 1972:
99-19-71.1. (1) As used in this section the following terms shall have the meaning herein ascribed unless the context clearly requires otherwise:
(a) "Court" shall mean any court with jurisdiction over arrests or convictions relating to the possession of marijuana.
(b) "Prosecutor" shall mean district attorney and county prosecutor.
(2) The court of each judicial district shall expunge:
(a) The convictions of each person convicted of possession of marijuana under Section 41-29-139(c) where the amount of marijuana was equal to or less than the legal limit of possession for medical cannabis as provided in Chapter 137, Title 41, Mississippi Code of 1972; and
(b) The record of any case where the only charges were for the possession of marijuana or any reference to a charge of possession of marijuana in the record of any case in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of such case, or the person was found not guilty at trial.
(3) (a) Within sixty (60) days of the effective date of this act, the court shall give sixty (60) days' written notice to the prosecutor of its intention to enter an order of expunction for the convictions under subsection (2)(a) of this section. The prosecutor may request a hearing in those cases where the prosecutor has a good faith belief that the amount of marijuana underlying the conviction was not equal to or less than the legal limit of possession as provided in Chapter 137, Title 41, Mississippi Code of 1972. If a hearing is requested, it shall be held within ninety (90) calendar days of the request. The court's order shall be entered within twenty-one (21) business days from the date of the hearing. In those cases where the court denies the petition, the findings of the court in this respect shall be identified specifically and not generally. The defendant shall have the right to appeal an order declining to enter an order of expunction.
(b) Within one hundred twenty (120) days of the effective date of this act, the court shall enter an order of expunction under subsection (2)(b) of this section.
(4) Upon the entrance of an order of expunction under this section, no record thereof shall be retained by the Mississippi Criminal Information Center. The order of expunction shall preclude a prosecutor's office from retaining a nonpublic record thereof.
(5) The existence of an order of expunction shall not preclude an employer from asking a prospective employee if the employee has had an order of expunction entered on his behalf. The effect of the expunction order shall be to restore the person, in the contemplation of the law, to the status he occupied before any arrest or indictment for which convicted. No person as to whom an expunction order has been entered shall be held thereafter under any provision of law to be guilty of perjury or to have otherwise given a false statement by reason of his failure to recite or acknowledge such arrest, indictment or conviction in response to any inquiry made of him for any purpose other than the purpose of determining, in any subsequent proceedings under this section, whether the person is a first offender. A person as to whom an order has been entered, upon request, shall be required to advise the court, in camera, of the previous conviction and expunction in any legal proceeding wherein the person has been called as a prospective juror. The court shall thereafter and before the selection of the jury advise the attorneys representing the parties of the previous conviction and expunction.
SECTION 2. Section 25-7-25, Mississippi Code of 1972, is amended as follows:
25-7-25. (1) Costs and fees in the justice court shall be charged as follows and shall be paid in advance to the clerk of the justice court in accordance with the provisions of Section 9-11-10:
(a) A uniform total fee in all civil cases, whether contested or uncontested, which shall include all services in connection therewith, except as hereinafter stated, each........................ $25.00
(b) For more than one (1) defendant, for service of process on each defendant........................................... 5.00
(c) After final judgment has been enrolled, further proceedings involving levy of execution on judgments, and attachment and garnishment proceedings................................... 15.00
(d) For all services in connection with the issuance of a peace bond............................................... 25.00
(e) For celebrating a marriage, and certificate
thereof.................................................. 10.00
(f) Commission to take depositions.............. 5.00
(g) Appeal with proceedings and bond............ 5.00
(h) A clerk's fee to be collected in all criminal cases in which the defendant is convicted, as follows:
(i) For all violations in Title 63 other than driving under the influence of intoxicating liquor or reckless driving 5.00
(ii) All other criminal cases.............. 25.00
(2) The justice
court shall have the power to impose a fee not to exceed Fifty Dollars ($50.00)
for an * * * expunction or dismissal of
any criminal affidavit, complaint or charge.
(3) In addition to the salary provided for in subsection (1) of Section 25-3-36, each justice court judge may receive a fee of not more than Twenty-five Dollars ($25.00) for each marriage ceremony he performs in the courtroom or offices of the justice court at any time the courtroom or offices are open to the public. This fee shall be paid by the parties to the marriage. Each justice court judge may receive money or gratuities for marriage ceremonies performed outside of and away from the courtroom and the offices of the justice court, that the parties to the marriage request to have performed at any time the courtroom or offices of the justice court are closed. These monies or gratuities, in an amount agreed upon by the parties to the marriage, are not considered fees for the justice court and are not subject to the requirements set forth in the provisions of Section 9-11-10.
SECTION 3. Section 81-18-9, Mississippi Code of 1972, is amended as follows:
81-18-9. (1) Applicants for a license shall apply in a form as prescribed by the commissioner. Each such form shall contain content as set forth by rule, regulation, instruction or procedure of the commissioner and may be changed or updated as necessary by the commissioner in order to carry out the purposes of this chapter.
(2) The mortgage broker and mortgage lender application through the Nationwide Mortgage Licensing System and Registry shall include, but is not limited to, the following:
(a) The legal name, residence and business address of the applicant and, if applicable, the legal name, residence and business address of every principal and executive officer, together with the résumé of the applicant and of every principal and executive officer of the applicant. In addition, an independent credit report obtained from a consumer-reporting agency described in Section 603(p) of the Fair Credit Reporting Act and information related to any administrative, civil or criminal findings by any governmental jurisdiction of every principal and executive officer.
(b) The legal name of the mortgage broker or mortgage lender in addition to the name under which the applicant will conduct business in the state, neither of which may be already assigned to a licensed mortgage broker or mortgage lender.
(c) The complete address of the applicant's principal place of business, branch office(s) and any other locations at which the applicant will engage in any business activity covered by this chapter. All locations shall be within the United States of America or a territory of the United States of America, including Puerto Rico and the U.S. Virgin Islands.
(d) A copy of the certificate of incorporation, if a Mississippi corporation.
(e) Documentation satisfactory to the department as to a certificate of existence of authority to transact business lawfully in Mississippi from the Mississippi Secretary of State's office, if a limited liability company, partnership, trust or any other group of persons, however organized. This paragraph does not pertain to applicants organized as an individual or as a sole proprietorship.
(f) If a foreign entity, a copy of a certificate of authority to conduct business in Mississippi and the address of the principal place of business of the foreign entity.
(g) Documentation of a minimum of two (2) years' experience directly related to mortgage activities by a person named as the qualifying individual of the company. The qualifying individual shall be primarily responsible for the operations of the licensed mortgage broker or mortgage lender. Only one (1) qualifying individual shall be named for Mississippi and this person shall be the qualifying individual for only one (1) licensee. Evidence of experience shall include, where applicable:
(i) Copies of business licenses issued by governmental agencies.
(ii) Employment history of the person filing the application for at least two (2) years before the date of the filing of an application, including, but not limited to, job descriptions, length of employment, names, addresses and phone numbers for past employers.
(iii) Any other data and pertinent information as the department may require with respect to the applicant, its directors, principals, trustees, officers, members, contractors or agents. A résumé alone shall not be sufficient proof of employment history.
(3) The mortgage broker and mortgage lender applications shall be filed on the Nationwide Mortgage Licensing System and Registry together with the following:
(a) The license fee specified in Section 81-18-15;
(b) An original or certified copy of a surety bond in favor of the State of Mississippi for the use, benefit and indemnity of any person who suffers any damage or loss as a result of the company's breach of contract or of any obligation arising therefrom or any violation of law;
(c) A set of fingerprints from any local law enforcement agency from the following applicants:
(i) All persons operating as a sole proprietorship that plan to conduct a mortgage-brokering or lending business in the State of Mississippi;
(ii) 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;
(iii) Any shareholders owning ten percent (10%) or more of the outstanding shares of the corporation;
(iv) All executive officers of the applicant;
(v) All loan originators; and
(vi) The named qualifying individual of the company as required in Section 81-18-9(2)(g). The applicant shall name only one (1) individual as the qualifying individual for the State of Mississippi; and
(d) At least one (1) employee shall be licensed as a loan originator at a licensed location.
(4) In connection with an application for licensing as a mortgage broker or lender under this chapter, the required stockholders, owners, directors and executive officers of the applicant shall, at a minimum, furnish to the Nationwide Mortgage Licensing System and Registry information concerning the individual's identity, including:
(a) Fingerprints from any local law enforcement agency for submission to the Federal Bureau of Investigation and any governmental entity authorized to receive that information for a state, national and/or international criminal history background check; and
(b) Personal history and experience in a form prescribed by the Nationwide Mortgage Licensing System and Registry, including the submission of authorization for the Nationwide Mortgage Licensing System and Registry and the commissioner to obtain:
(i) An independent credit report obtained from a consumer-reporting agency described in Section 603(p) of the Fair Credit Reporting Act; and
(ii) Information related to any administrative, civil or criminal findings by any governmental jurisdiction.
(5) Upon receipt of an application for licensure, the department or designated third party shall conduct an investigation as it deems necessary to determine that the applicant and its officers, directors and principals are of good character and ethical reputation; that the applicant demonstrates reasonable financial responsibility; and that the applicant has reasonable policies and procedures to receive and process customer grievances and inquiries promptly and fairly.
(6) The commissioner shall not license an applicant unless he is satisfied that the applicant will operate its mortgage activities in compliance with the laws, rules and regulations of this state and the United States.
(7) If an applicant satisfies the requirements of this chapter for a mortgage broker or mortgage lender license, the commissioner shall issue the license unless the commissioner finds any of the following:
(a) The applicant has had a mortgage lender, mortgage broker or mortgage servicer license revoked in any governmental jurisdiction, except that a subsequent formal vacation of the revocation shall not be deemed a revocation; or
(b) The applicant or
its controlling persons has been convicted of, or pled guilty or nolo contendere
to, (i) a felony in a domestic, foreign or military court during the seven-year
period preceding the date of application for licensing; or (ii) at any time
preceding the date of application if such felony involved an act of fraud,
dishonesty, a breach of trust, or money laundering. However, any pardon or * * *
expunction of a conviction shall not be a conviction for purposes of
this subsection.
(8) Applicants for a mortgage loan originator license shall apply in a form as prescribed by the commissioner and shall be filed on the Nationwide Mortgage Licensing System and Registry. Each such form shall contain content as set forth by rules, regulations, instructions or procedures of the commissioner and may be changed or updated as necessary by the commissioner in order to carry out the purposes of this chapter. The initial license of a mortgage loan originator shall be accompanied by a fee of Two Hundred Dollars ($200.00), to be paid to the Nationwide Mortgage Licensing System and Registry, and any additional fees as required by the Nationwide Mortgage Licensing System and Registry. The commissioner shall not issue a mortgage loan originator license unless the commissioner makes at a minimum the following findings:
(a) The applicant has never had a mortgage loan originator license revoked in any governmental jurisdiction, except that a later formal vacation of that revocation shall not be deemed a revocation.
(b) The applicant has
not been convicted of, or pled guilty or nolo contendere to, (i) a felony in a
domestic, foreign or military court during the seven-year period preceding the
date of application for licensing; or (ii) at any time preceding the
date of application if such felony involved an act of fraud, dishonesty, a
breach of trust or money laundering. However, any pardon or * * *
expunction of a conviction shall not be a conviction for purposes of
this subsection.
(c) The applicant has demonstrated financial responsibility, character and general fitness such as to command the confidence of the community and to warrant a determination that the mortgage loan originator will operate honestly, fairly and efficiently within the purposes of this chapter.
(d) The applicant has completed the prelicensing education requirement described in Section 81-18-14(1).
(e) The applicant has passed a written test that meets the test requirement described in Section 81-18-14(7).
(f) The applicant has met the surety bond requirement as provided in Section 81-18-11.
(g) This individual must work for a Mississippi licensed company and work from the location licensed with the department. The licensed location that he or she is assigned to must be within one hundred twenty-five (125) miles of his or her residency. If the licensed loan originator resides and works in Mississippi, then he or she may work from any licensed location of the licensed company within the State of Mississippi. However, an owner of a minimum of ten percent (10%) of a licensed company or the named qualifying individual on file with the department, who is a licensed loan originator with the department, may work from any licensed location of the licensed company within the State of Mississippi in the capacity of a loan originator as described in this chapter.
(9) In order to fulfill the purposes of this chapter, the commissioner is authorized to establish relationships or contracts with the Nationwide Mortgage Licensing System and Registry or other entities designated by the Nationwide Mortgage Licensing System and Registry to collect and maintain records and process transaction fees or other fees related to licensees or other persons subject to this chapter.
(10) In connection with an application for licensing as a mortgage loan originator, the applicant shall, at a minimum, furnish to the Nationwide Mortgage Licensing System and Registry information concerning the applicant's identity, including:
(a) Fingerprints for submission to the Federal Bureau of Investigation, and any governmental agency or entity authorized to receive that information for a state, national and/or international criminal history background check; and
(b) Personal history and experience in a form prescribed by the Nationwide Mortgage Licensing System and Registry, including the submission of authorization for the Nationwide Mortgage Licensing System and Registry and the commissioner to obtain:
(i) An independent credit report obtained from a consumer-reporting agency described in Section 603(p) of the Fair Credit Reporting Act; and
(ii) Information related to any administrative, civil or criminal findings by any governmental jurisdiction.
(11) For the purposes of this section and in order to reduce the points of contact which the Federal Bureau of Investigation may have to maintain for purposes of subsection (10)(a) and (b)(ii) of this section, the commissioner may use the Nationwide Mortgage Licensing System and Registry as a channeling agent for requesting information from and distributing information to the Department of Justice or any governmental agency.
(12) For the purposes of this section and in order to reduce the points of contact which the commissioner may have to maintain for purposes of subsection (10)(b)(i) and (ii) of this section, the commissioner may use the Nationwide Mortgage Licensing System and Registry as a channeling agent for requesting and distributing information to and from any source so directed by the commissioner.
SECTION 4. This act shall take effect and be in force from and after its passage.