MISSISSIPPI LEGISLATURE
2013 Regular Session
To: Judiciary A
By: Representative Baker
AN ACT TO PROVIDE FOR THE HIRING OF ATTORNEYS BY STATE AGENCIES, BOARDS, INSTITUTIONS AND COMMISSIONS; TO AMEND SECTIONS 7-5-13, 7-5-49, 7-5-51, 17-18-41, 25-11-119, 27-33-49, 27-104-105, 29-1-137, 29-3-39, 31-29-23, 41-9-35, 43-11-27, 43-15-121, 43-16-21, 43-20-21, 43-27-14, 47-5-75, 49-2-21, 49-4-21, 49-5-98, 49-15-19, 53-1-11, 53-1-47, 57-10-533, 57-61-35, 57-71-33, 57-77-39, 59-5-65, 59-17-57, 65-26-37, 69-2-33, 69-27-359, 73-11-49, 73-13-39, 73-13-95, 73-15-33, 73-29-39, 73-29-43, 73-36-35, 73-63-25, 75-76-25, 83-1-5 AND 97-33-109, MISSISSIPPI CODE OF 1972, IN CONFORMITY; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The governing director or governing entity of any state agency, board, institution or commission, included in this act by amendment to its statutory authority to hire legal counsel or for which no specific statutory authority is provided by law to hire legal counsel, shall hire an attorney who is a member in good standing of The Mississippi Bar as legal counsel to the state agency, board, institution or commission. Such attorney shall be the legal representative of such state agency, board, institution or commission and shall represent such state agency, board, institution or commission in any proceedings before such state agency, board, institution, commission or any court. Unless otherwise provided by law, the state agency, board, institution or commission shall determine the compensation which shall be paid out of any funds appropriated or otherwise available to the appointing or employing authority.
SECTION 2. Section 7-5-13, Mississippi Code of 1972, is amended as follows:
7-5-13. The * * *
Transportation
Commission * * * shall hire attorneys as provided
in Section 1 of House Bill No._____, 2013 Regular Session, to handle the
legal affairs of the * * * commission. * * * The * * *
commission
shall fix the annual salary of each of the * * * attorneys
appointed under the provisions hereof said salary to be paid monthly from funds
of the * * * commission.
The * * * attorneys shall devote their entire time and
attention to the duties pertaining to the department of justice and the legal
affairs of the * * * commission * * *.
SECTION 3. Section 7-5-49, Mississippi Code of 1972, is amended as follows:
7-5-49. * * *
The Public Service Commission * * * is authorized to hire attorneys as
provided in Section 1 of House Bill No._____, 2013 Regular Session, to
assist and advise the said Public Service Commission in all matters affecting
its power and duties relative to the supervision of common carriers in this
state.
SECTION 4. Section 7-5-51, Mississippi Code of 1972, is amended as follows:
7-5-51. The * * *
Department of Revenue and Public Service Commission are
hereby authorized to hire attorneys as provided in Section 1 of House Bill
No._____, 2013 Regular Session, 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.
SECTION 5. Section 17-18-41, Mississippi Code of 1972, is amended as follows:
17-18-41. (1) No member, officer or employee of the department, authority or committee while acting within the scope of their authority shall be subject to any personal liability by reason of any act or omission in connection with the exercise of any power or performance of any duty whether expressed or implied pursuant to this chapter.
(2) Except as otherwise
authorized in Section 7-5-39, the * * * authority
and the committee * * * are authorized under Section 1 of House Bill No.____, 2013
Regular Session to hire attorneys to provide legal advice and counsel * * *
to the authority and
the committee.
SECTION 6. Section 25-11-119, Mississippi Code of 1972, is amended as follows:
25-11-119. (1) The board shall keep such data as shall be necessary for actuarial valuation of the assets and liabilities of the system and for checking its operating experience.
(2) The board shall keep minutes which shall be open to public inspection. It shall have the accounts of the system audited annually by the State Audit Department and shall publish as of the end of each fiscal year a report showing the fiscal transactions of the system for the preceding fiscal year, the amount of the accumulated cash and securities of the system, a statement of income and expenditures, a statement of investments acquired and disposed of, and a balance sheet showing the financial condition of the system by means of an actuarial valuation of its assets and liabilities. It shall also publish a synopsis of the report.
(3) The board shall establish a general office for the meeting of the board and for the administrative personnel; provide for the installation of an adequate system of books, accounts, and records which will give effect to all requirements of Articles 1 and 3; and credit all assets received by the funds according to the purposes for which they are held. All books, accounts and records shall be kept in the general office of the board and shall be public records except for individual member records. The system shall not disclose the name, address or contents of any individual member records without the prior written consent of the individual to whom the record pertains, except as authorized by regulations of the board.
(4) The board shall hold regular meetings at least quarterly in each year and such special meetings as may be deemed necessary. All meetings shall be open to the public.
(5) The board shall have power to make contracts, and to sue and be sued, under the name of the Board of Trustees of the Public Employees' Retirement System of Mississippi.
(6) Legal advisor.
The * * * board
is authorized to hire an attorney as provided in Section 1 of House Bill
No._____, 2013 Regular Session, who shall be the legal advisor of the
board; and the board may employ counsel when needed.
(7) Medical board. The board may designate a medical board to be composed of three (3) physicians or may contract with another governmental agency or nongovernmental disability determination service that is qualified to make disability determinations. If required, other physicians may be engaged to report on special cases. The medical board or other governmental or nongovernmental disability determination service agency so designated shall arrange for, and pass upon, all medical examinations required under the provisions of this article; shall investigate all essential statements and certificates by or on behalf of a member in connection with an application for disability retirement; and shall report in writing to the board of trustees its conclusions and recommendations upon all the matters referred to it.
(8) Duties of actuary. The board of trustees shall designate an actuary who shall be the technical advisor of the board on matters regarding the operation of the system, and shall perform such other duties as are required in connection therewith.
(9) At least once in each two-year period, the actuary shall make an actuarial survey of the mortality, service, withdrawal and compensation experience of the members and beneficiaries of the retirement system, and shall make a valuation of the assets and liabilities of the system. Taking into account the result of such investigation and valuation, the board of trustees shall adopt for the retirement system such mortality, service, and other tables as shall be deemed necessary. On the basis of such tables as the board of trustees shall adopt, the actuary shall make valuations of the assets and liabilities of the funds of the system.
SECTION 7. Section 27-33-49, Mississippi Code of 1972, is amended as follows:
27-33-49. Except as
otherwise authorized in Section 7-5-39, the * * * commision is
authorized to hire an attorney as provided in Section 1 of House Bill No._____,
2013 Regular Session, who shall be the attorney for the commission and
shall represent it in any proceedings before any court. In any hearing before
the commission, where the services of an attorney are desired or needed, the * * *
attorney shall
attend on behalf of the commission. The Attorney General shall construe any
doubtful or conflicting provisions of this article, and his opinion shall be
controlling on all officers.
SECTION 8. Section 27-104-105, Mississippi Code of 1972, is amended as follows:
27-104-105. The Department
of Finance and Administration shall not process any warrant requested by any
state agency for payment for legal services without first determining that the
services and contract were approved either by the * * * department's attorney
and the State Personnel Board, or as authorized under Section 7-5-39(3);
contracts for legal services performed for the State Highway Department in
eminent domain cases shall not require approval by the State Personnel Board.
The State Auditor shall test for compliance with this section.
SECTION 9. Section 29-1-137, Mississippi Code of 1972, is amended as follows:
29-1-137. The * * *
commission
is authorized to hire an attorney as provided in Section 1 of House Bill
No._____, 2013 Regular Session, who 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. 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 may request * * *
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 shall prepare all bills,
declarations, and pleadings.
SECTION 10. Section 29-3-39, Mississippi Code of 1972, is amended as follows:
29-3-39. It shall be the
duty of the board of education to survey periodically the classification of all
sixteenth section land under its jurisdiction and to reclassify that land as it
may deem advisable because of changes of conditions, and when any land is so
reclassified, the board of education shall file a report thereof with the
Secretary of State. From time to time the Secretary of State may institute
proceedings to reclassify any sixteenth section lands which he may deem
advisable and when any land is so reclassified, the Secretary of State shall
file a report thereof with the board of education. When any land is
reclassified under this section, notice thereof, rights to object thereto and
rights to appeal therefrom shall be given in the same manner provided in
Section 29-3-37 with reference to the original classification. However, all
sixteenth section land shall be classified, or reclassified as is necessary,
within one (1) year prior to the expiration date of any existing lease, and
within sixty (60) days of the terminating of any lease of sixteenth section
land by final court order. In all litigation which may result from the
classification or reclassification of lands by the Secretary of State under
Sections 29-3-31 through 29-3-39, the Secretary of State shall be represented
by * * * legal counsel hired by the Secretary of State, who
shall have control of the litigation except as otherwise authorized in Section
7-5-39, but it shall be the duty of the various boards of education to furnish
local legal assistance when requested so to do by the * * *
attorney.
SECTION 11. Section 31-29-23, Mississippi Code of 1972, is amended as follows:
31-29-23. Except as otherwise authorized in Section 7-5-39 or unless the commission hires an attorney under the provisions of Section 1 of House Bill No._____, Regular Session, for that specific purpose, the Attorney General of the State of Mississippi shall represent the State Bond Commission in issuing, selling and validating bonds herein provided for, and the bond commission is hereby authorized and empowered to expend from the proceeds derived from the sale of the bonds authorized hereunder all necessary administrative, legal and other expenses incidental and related to the issuance of bonds authorized under this chapter.
SECTION 12. 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 * * * licensing agency's attorney
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.
SECTION 13. 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 * * * licensing agency's attorney
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.
SECTION 14. 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 * * * division's attorney who,
except as otherwise authorized in Section 7-5-39, shall represent the division
in the proceedings, maintain an action 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 15. 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 * * *
department's
attorney who, except as otherwise authorized in Section 7-5-39, shall
represent the department in the proceedings, maintain an action 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 16. 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 * * *
licensing
agency's attorney 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 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 17. Section 43-27-14, Mississippi Code of 1972, is amended as follows:
43-27-14. The Department of
Youth Services shall have the authority to accept any allotments of federal
funds and commodities and shall manage and dispose of them in whatever manner
may be required by federal law, and may take advantage of any federal programs,
grants-in-aid, or other public or private assistance which may be offered or
available which will accomplish or further the objectives of the department.
Except as otherwise authorized in Section 7-5-39, the * * * department's attorney
shall be the legal representative of the department.
SECTION 18. 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 hired by the department shall
represent 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 19. Section 49-2-21, Mississippi Code of 1972, is amended as follows:
49-2-21. * * *
Attorneys
shall be hired as provided in Section 1 of House Bill No._____, 2013 Regular
Session, to be counsel and attorney for the commission and the Department
of Environmental Quality and * * * provide such legal services as may be
requested from time to time * * *. The executive director is
hereby authorized to employ such legal counsel as may be necessary or appropriate
for the operation of the department.
SECTION 20. Section 49-4-21, Mississippi Code of 1972, is amended as follows:
49-4-21. * * *
Attorneys
shall be hired as provided in Section 1 of House Bill No._____, 2013 Regular
Session, to be counsel and attorney for the commission and Department of
Wildlife, Fisheries and Parks. * * * The * * *
attorney
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 21. Section 49-5-98, Mississippi Code of 1972, is amended as follows:
49-5-98. Except as otherwise authorized in Section 7-5-39 and unless the commission hires an attorney as provided in Section 1 of House Bill No._____, 2013 Regular Session, the Attorney General of the State of Mississippi shall represent the commission in issuing, selling and validating bonds herein provided for, and the commission may expend any sum not exceeding Fifteen Thousand Dollars ($15,000.00) from the proceeds derived from the sale of the bonds authorized hereunder to pay the cost of attorney's fees, validating, printing, and cost of delivery of bonds authorized under Sections 49-5-86 through 49-5-98.
SECTION 22. Section 49-15-19, Mississippi Code of 1972, is amended as follows:
49-15-19. The * * *
commission and
department are authorized to hire attorneys as provided in Section 1 of House
Bill No.____, 2013 Regular Session, who shall be counsel and attorney for
the commission and department and shall provide legal services as may be
requested. The executive director is authorized to employ additional
legal counsel * * * as may be necessary or
appropriate for the operation of the department.
SECTION 23. Section 53-1-11, Mississippi Code of 1972, is amended as follows:
53-1-11. * * *
The board may, from
any funds available, retain additional counsel * * *. Any member of
the board, or the secretary thereof, shall have the power to administer oaths
to any witness in any hearings, investigations or proceedings contemplated by
this chapter or by any other law of this state relating to the conservation of
oil and gas.
SECTION 24. Section 53-1-47, Mississippi Code of 1972, is amended as follows:
53-1-47. (a) (i) Any person, who, for the purpose of evading the provisions of Sections 53-1-1 through 53-1-47, inclusive, or any rule, regulation or order made thereunder, shall make or cause to be made any false entry, statement of fact or omission in any report required by such sections or by any rule, regulation or order thereunder or in any account, record or memorandum kept in connection with the provisions thereof or who, for such purpose, shall mutilate, alter, conceal or falsify any such report, account, record or memorandum, shall be subject to a penalty of not more than Ten Thousand Dollars ($10,000.00) per day for each day of such violation to be assessed by the board. In determining the amount of the penalty, the board shall consider the factors specified in subsection (d) of this section. Such penalties shall be assessed according to the procedures set forth in subsection (b) of this section.
(ii) Any person, who, for the purpose of evading the provisions of Sections 53-1-1 through 53-1-47, inclusive, or any rule, regulation or order made thereunder, shall intentionally make or cause to be made any false entry, statement of fact or omission in any report required by said sections or by any rule, regulation or order thereunder or in any account, record or memorandum kept in connection with the provisions thereof or who, for such purpose, shall mutilate, alter, conceal or falsify any such report, account, record or memorandum shall be deemed guilty of a misdemeanor and shall be subject, upon conviction in any court of competent jurisdiction, to a fine of not less than Five Hundred Dollars ($500.00) nor more than One Thousand Dollars ($1,000.00), or imprisonment for a term of not less than ten (10) days nor more than six (6) months for each such violation, or both such fine and imprisonment.
(b) Any person who violates any provision of Sections 53-1-1 through 53-1-47, inclusive, or Sections 53-3-1 through 53-3-33, and 53-3-39 through 53-3-165, or any lawful rule, regulation or order of the board made hereunder, shall, in addition to any penalty for such violation that is otherwise provided for herein, be subject to a penalty of not to exceed Ten Thousand Dollars ($10,000.00) per day for each day of such violation to be assessed by the board. When any charge is filed with the board charging any person with any such violation, the board shall conduct an adjudicative proceeding in accordance with the Administrative Procedures Law. Such proceeding shall be held by not less than three (3) members of the board and a unanimous verdict of all members hearing such charge shall be necessary for conviction and in the event of a conviction all members of the board hearing such cause must agree on the penalty assessed.
Except as otherwise
authorized in Section 7-5-39, * * * the
board shall hire attorneys as provided in Section 1 of House Bill No._____,
2013 Regular Session, who shall represent the board in all such
proceedings. * * *
All penalties assessed by the board under the provisions of this section shall have the force and effect of a judgment of the circuit court and shall be enrolled in the office of the circuit clerk and execution may be issued thereon. All such penalties paid or collected shall be paid to the State Treasurer for credit to the Special Oil and Gas Board Fund.
Any person adjudged guilty of any such violation shall have the right of appeal in accordance with the provisions of Section 53-1-39.
The payment of any penalty as provided herein shall not have the effect of changing illegal oil into legal oil, illegal gas into legal gas or illegal product into legal product, nor shall such payment have the effect of authorizing the sale or purchase or acquisition or the transportation, refining, processing or handling in any other way of such illegal oil, illegal gas or illegal product.
(c) Any person who aids or abets any other person in the violation of any provision of Sections 53-1-1 through 53-1-47, inclusive, or Sections 53-3-1 through 53-3-21, inclusive, or any rule, regulation or order made thereunder, shall be subject to the same penalties as are prescribed herein for the violation by such other person.
(d) In determining the amount of the penalty under subsection (a), (b) or (c) of this section, the board shall consider at a minimum the following factors:
(i) The willfulness of the violation;
(ii) Any damage to water, land or other natural resources of the state or their users;
(iii) Any cost of restoration and abatement;
(iv) Any economic benefit to the violator as a result of noncompliance;
(v) The seriousness of the violation, including any harm to the environment and any harm to the health and safety of the public; and
(vi) Any prior violation by such violator.
(e) The board is authorized to utilize the provisions of Section 85-7-132 to enforce penalties provided by this section.
SECTION 25. Section 57-10-533, Mississippi Code of 1972, is amended as follows:
57-10-533. Except as otherwise authorized in Section 7-5-39 or unless an attorney is hired under the provisions of Section 1 of House Bill No.____, 2013 Regular Session, the Attorney General of the State of Mississippi shall represent the seller in issuing, selling and validating bonds or notes herein provided for, and the seller is hereby authorized and empowered to expend from the proceeds derived from the sale of the bonds or notes authorized hereunder all necessary administrative, legal and other expenses incidental and related to the issuance of bonds or notes authorized under this article.
SECTION 26. Section 57-61-35, Mississippi Code of 1972, is amended as follows:
57-61-35. Except as otherwise authorized in Section 7-5-39 or unless an attorney is hired under the provisions of Section 1 of House Bill No.____, 2013 Regular Session, the Attorney General of the State of Mississippi shall represent the seller in issuing, selling and validating bonds herein provided for, and the seller is hereby authorized and empowered to expend from the proceeds derived from the sale of the bonds authorized hereunder all necessary administrative, legal and other expenses incidental and related to the issuance of bonds authorized under this chapter.
SECTION 27. Section 57-71-33, Mississippi Code of 1972, is amended as follows:
57-71-33. Except as otherwise authorized in Section 7-5-39 or unless an attorney is hired under the provisions of Section 1 of House Bill No.____, 2013 Regular Session, the Attorney General of the State of Mississippi shall represent the seller in issuing, selling and validating bonds or notes herein provided for, and the seller is hereby authorized and empowered to expend from the proceeds derived from the sale of the bonds or notes authorized hereunder all necessary administrative, legal and other expenses incidental and related to the issuance of bonds or notes authorized under this act.
SECTION 28. Section 57-77-39, Mississippi Code of 1972, is amended as follows:
57-77-39. Except as otherwise authorized in Section 7-5-39 or unless an attorney is hired under the provisions of Section 1 of House Bill No._____, 2013 Regular Session, the Attorney General of the State of Mississippi shall represent the seller in issuing, selling and validating bonds or notes herein provided for, and the seller is hereby authorized and empowered to expend from the proceeds derived from the sale of the bonds or notes authorized hereunder all necessary administrative, legal and other expenses incidental and related to the issuance of bonds or notes authorized under this chapter.
SECTION 29. Section 59-5-65, Mississippi Code of 1972, is amended as follows:
59-5-65. Except as otherwise authorized in Section 7-5-39 or unless an attorney is hired under the provisions of Section 1 of House Bill No._____, 2013 Regular Session, the Attorney General of the State of Mississippi shall represent the State Bond Commission in issuing, selling and validating bonds herein provided for. The State Bond Commission is hereby authorized and empowered to pay the costs that are incident to the sale, issuance and delivery of the bonds herein provided for, and such costs may be paid for out of the proceeds derived from the sale of such bonds.
SECTION 30. Section 59-17-57, Mississippi Code of 1972, is amended as follows:
59-17-57. Except as otherwise authorized in Section 7-5-39 or unless an attorney is hired under the provisions of Section 1 of House Bill No._____, 2013 Regular Session, the Attorney General of the State of Mississippi shall represent the State Bond Commission in issuing, selling and validating bonds herein provided for, and the board is hereby authorized and empowered to expend any sum not exceeding Fifteen Thousand Dollars ($15,000.00) from the proceeds derived from the sale of any one (1) series of bonds authorized hereunder to pay for the cost of the approving attorney's fees, validating, printing and cost of delivery of bonds authorized under this chapter.
SECTION 31. Section 65-26-37, Mississippi Code of 1972, is amended as follows:
65-26-37. Except as otherwise authorized in Section 7-5-39 or unless an attorney is hired under the provisions of Section 1 of House Bill No._____, 2013 Regular Session, the Attorney General of the State of Mississippi shall represent the Transportation Commission in issuing, selling and validating bonds herein provided for, and said Transportation Commission is hereby authorized and empowered to expend any sum not to exceed Forty Thousand Dollars ($40,000.00) on approval by the State Bond Commission from the proceeds derived from the sale of bonds authorized in subsections (1) and (2) of Section 65-26-15, or from other funds available to the Transportation Commission, to pay the cost of approving attorney's fees, validating, printing and cost of delivery of bonds authorized under this chapter.
SECTION 32. Section 69-2-33, Mississippi Code of 1972, is amended as follows:
69-2-33. Except as otherwise authorized in Section 7-5-39 or unless an attorney is hired under the provisions of Section 1 of House Bill No.____, 2013 Regular Session, the Attorney General of the State of Mississippi shall represent the department in issuing, selling and validating bonds or notes authorized under Sections 69-2-19 through 69-2-39 of this chapter, and the department is authorized to pay from the proceeds derived from the sale of such bonds or notes, or from other funds available to the department, the reasonable cost of approving attorney's fees, validating, printing and cost of delivery of such bonds or notes.
SECTION 33. Section 69-27-359, Mississippi Code of 1972, is amended as follows:
69-27-359. Except as otherwise authorized in Section 7-5-39 or unless an attorney is hired under the provisions of Section 1 of House Bill No.____, 2013 Regular Session, the Attorney General of the State of Mississippi shall represent the Soil and Water Conservation Commission in issuing, selling and validating bonds authorized under Sections 69-27-345 through 69-27-365, and the commission is authorized to pay from the proceeds derived from the sale of such bonds or from other funds available to the commission, the reasonable cost of approving attorney's fees, validating, printing, cost of delivery of such bonds and any other necessary costs of issuance.
SECTION 34. Section 73-11-49, Mississippi Code of 1972, is amended as follows:
73-11-49. (1) The board is authorized to select from its own membership a chairman, vice chairman and secretary-treasurer. Election of officers shall be held at the first regularly scheduled meeting of the fiscal year.
(2) All members of the board shall be reimbursed for their necessary traveling expenses and mileage incident to their attendance upon the business of the board, as provided in Section 25-3-41, and shall receive a per diem as provided in Section 25-3-69 for every day actually spent upon the business of the board, not to exceed twenty (20) days per year unless authorized by a majority vote of the board.
(3) All monies received by the board shall be paid into a special fund in the State Treasury to the credit of the board and shall be used by the board for paying the traveling and necessary expenses and per diem of the members of the board while on board business, and for paying other expenses necessary for the operation of the board in carrying out and involving the provisions of this chapter.
(4) The board shall employ an administrator of the board, who shall have complete supervision and be held responsible for the direction of the office of the board, shall have supervision over field inspections and enforcement of the provisions of this chapter, shall have such other duties as may be assigned by the board, shall be responsible and answerable to the board. The board may employ such other clerical assistants and employees as may be necessary to carry out the provisions of this chapter, and the terms and conditions of such employment shall be determined by the board in accordance with applicable state law and rules and regulations of the State Personnel Board.
(5) Except as otherwise
authorized in Section 7-5-39, the board, when it shall deem necessary, shall be
represented by an * * * attorney
hired as provided in Section 1 of House Bill No.____, 2013 Regular Session,
and may also request and receive the assistance of other state agencies and
county and district attorneys, all of whom are authorized to provide the
assistance requested.
(6) The board shall have subpoena power in enforcing the provisions of this chapter.
(7) The board shall adopt and promulgate rules and regulations consistent with law concerning, but not limited to, trainees, apprentices and preceptors, practitioners of funeral service, funeral directors, embalmers and funeral establishments and branches. These rules and regulations shall not become effective unless promulgated and adopted in accordance with the provisions of the Mississippi Administrative Procedures Law (Section 25-43-1.101 et seq.).
(8) The board may designate the administrator to perform inspections under this chapter, may employ an individual to perform such inspections or may contract with any other individual or entity to perform such inspections. Any individual or entity that performs such inspections shall have the right of entry into any place in which the business or practice of funeral service and/or funeral directing is carried on or advertised as being carried on, for the purpose of inspection, for the investigation of complaints coming before the board and for such other matters as the board may direct.
(9) The board shall not adopt any rule or regulation requiring dead bodies to be embalmed except as required by rule or otherwise by the State Department of Health.
SECTION 35. Section 73-13-39, Mississippi Code of 1972, is amended as follows:
73-13-39. Any person or firm who shall practice, or offer to practice, engineering in this state without being licensed in accordance with the provisions of Sections 73-13-1 through 73-13-45, or any person presenting or attempting to use as his own the certificate of licensure or seal of another, or any person who shall give any false or forged evidence of any kind to the board or to any member thereof in obtaining a certificate of licensure, or any person who shall falsely impersonate any other licensee of like or different name, or any person or firm who shall attempt to use an expired or revoked certificate of licensure, or any person or firm who shall violate any of the provisions of Sections 73-13-1 through 73-13-45, shall be guilty of a misdemeanor, and shall, upon conviction, be sentenced to pay a fine of not less than One Hundred Dollars ($100.00), nor more than Five Thousand Dollars ($5,000.00) in addition to reimbursement of investigative expenses and court costs, or suffer imprisonment for a period not exceeding three (3) months, or both. The criminal penalties provided for in this section may be assessed in addition to those civil penalties provided for in Section 73-13-37.
Unless licensed in accordance with the provisions of Sections 73-13-1 through 73-13-45, no person shall:
(a) Directly or indirectly employ, use, cause to be used or make use of any of the following terms or any combinations, variations or abbreviations thereof as a professional, business or commercial identification, title, name, representation, claim, asset or means of advantage or benefit: "engineer," "professional engineer," "licensed engineer," "registered engineer," "registered professional engineer," "licensed professional engineer," "engineered," "engineering"; or
(b) Directly or indirectly employ, use, cause to be used or make use of any letter, abbreviation, word, symbol, slogan, sign or any combinations or variations thereof which in any manner whatsoever tends or is likely to create any impression with the public or any member thereof that any person is qualified or authorized to practice engineering; or
(c) Receive any fee or compensation or the promise of any fee or compensation for performing, offering or attempting to perform any service, work, act or thing which is any part of the practice of engineering.
Any person, firm, partnership, association or corporation which shall do, offer or attempt to do any one or more of the acts or things set forth in items (a) through (c) of the preceding paragraph shall be conclusively presumed and regarded as engaged in the practice of engineering.
It shall be the duty of all
duly constituted officers of the law of this state, or any political
subdivision thereof, to enforce the provisions of Sections 73-13-1 through 73-13-45
and to prosecute any persons violating same. Except as otherwise authorized in
Section 7-5-39, the * * * board shall hire an attorney
as provided in Section 1 of House Bill No._____, 2013 Regular Session, who
shall act as legal advisor of the board in carrying out the provisions of
Sections 73-13-1 through 73-13-45.
SECTION 36. Section 73-13-95, Mississippi Code of 1972, is amended as follows:
73-13-95. Any person who shall practice, or offer to practice, surveying in this state without being licensed in accordance with the provisions of Sections 73-13-71 through 73-13-105, or any person presenting or attempting to use as his own the certificate of licensure or the seal of another, or any person who shall give any false or forged evidence of any kind to the board or to any member thereof in obtaining a certificate of licensure, or any person who shall falsely impersonate any other licensee of like or different name, or any person who shall knowingly attempt to use a license which has been expired for more than twelve (12) consecutive months or revoked certificate of licensure, or any person who shall violate any of the provisions of Sections 73-13-71 through 73-13-105, shall be guilty of a misdemeanor, and shall, upon conviction of a first offense of violating this section, be sentenced to pay a fine of not less than One Hundred Dollars ($100.00), nor more than Five Thousand Dollars ($5,000.00), and in addition thereto shall make restitution to the board for investigative expenses and court costs, or suffer imprisonment for a period of not exceeding three (3) months, or both. Upon any second and subsequent conviction of violating this section, such person shall be sentenced to pay a fine of not less than Five Thousand Dollars ($5,000.00), nor more than Ten Thousand Dollars ($10,000.00), or by imprisonment in the county jail for not more than one (1) year, or both. The criminal penalties provided for in this section may be assessed in addition to those civil penalties provided for in Section 73-13-37.
Unless licensed in accordance with the provisions of Sections 73-13-71 through 73-13-105, no person shall:
(a) Directly or indirectly employ, use, cause to be used or make use of any of the following terms or any combination, variations or abbreviations thereof as a professional, business or commercial identification, title, name, representation, claim, asset or means of advantage or benefit: "surveyor," "professional surveyor," "licensed surveyor," "registered surveyor," "registered professional surveyor," "licensed professional surveyor," "surveyed," "surveying," "professional land surveyor," or "licensed professional land surveyor";
(b) Directly or indirectly employ, use, cause to be used or make use of any letter, abbreviation, word, symbol, slogan, sign or any combinations or variations thereof, which in any manner whatsoever tends or is likely to create any impression with the public or any member thereof that any person is qualified or authorized to practice surveying; or
(c) Receive any fee or compensation or the promise of any fee or compensation for performing, offering or attempting to perform any service, work, act or thing which is any part of the practice of surveying.
Any person, firm, partnership, association or corporation which shall do, offer or attempt to do any one or more of the acts or things set forth in items (a) through (c) of the preceding paragraph shall be conclusively presumed and regarded as engaged in the practice of surveying.
It shall be the duty of all
duly constituted officers of the law of this state, or any political
subdivision thereof, to enforce the provisions of Sections 73-13-71 through 73-13-105
and to prosecute any persons violating same. Except as otherwise authorized in
Section 7-5-39, the * * * board shall hire an attorney
as provided in Section 1 of House Bill No._____, 2013 Regular Session, who
shall act as legal adviser of the board and render such legal assistance as may
be necessary in carrying out the provisions of Sections 73-13-71 through 73-13-105.
SECTION 37. Section 73-15-33, Mississippi Code of 1972, is amended as follows:
73-15-33. It is unlawful for any person, including a corporation or association, to:
(a) Sell, fraudulently obtain or furnish any nursing diploma, license, renewal of license, or record, or to aid or abet therein;
(b) Practice nursing as defined by this article under cover of any diploma, license, renewal of license, or record illegally or fraudulently obtained or signed or issued unlawfully or under fraudulent representation;
(c) Practice or offer to practice nursing as defined by this article unless duly licensed or privileged to practice under the provisions of this article;
(d) Use any title, designation or abbreviation by which a person presents to the public that he or she is a registered nurse, a licensed practical nurse or any other type of nurse, unless the person is duly licensed or privileged to practice under the provisions of this article; however, this paragraph does not prohibit a certified nurse assistant or certified nursing assistant from using the word "nurse" or "nursing" as part of his or her job title;
(e) Practice as a registered nurse or a licensed practical nurse during the time his or her license or privilege to practice issued under the provisions of this article is under suspension or revocation;
(f) Conduct a nursing education program for the preparation of registered nurses, unless the program has been accredited by the Board of Trustees of State Institutions of Higher Learning, or conduct a nursing education program for the preparation of licensed practical nurses unless the program has been accredited by the Department of Education through the Division of Vocational Education;
(g) Willfully employ unlicensed persons or persons not holding the privilege to practice, to practice as registered nurses or licensed practical nurses; or
(h) Willfully aid or abet any person who violates any provisions of this article.
Any person, firm or
corporation who violates any provisions of this article shall be guilty of a
misdemeanor and, upon conviction thereof, shall be punished by a fine not less
than One Hundred Dollars ($100.00) nor more than One Thousand Dollars
($1,000.00) or by imprisonment in the county jail for not less than twelve (12)
months, or by both such fine and imprisonment. It shall be necessary to prove,
in any prosecution under this article, only a single act prohibited by law, or
a single holding out or an attempt without proving a general course of conduct
in order to constitute a violation. Each violation may constitute a separate
offense. Except as otherwise authorized in Section 7-5-39, it shall be the
duty of the board's
attorney to advise with the board in preparing charges, to assist in
conducting board disciplinary hearings, to provide assistance with appropriate
affidavits and other charges for filing in the appropriate court, and to assist
the county or district attorney in prosecution, if any.
SECTION 38. Section 73-29-39, Mississippi Code of 1972, is amended as follows:
73-29-39. Any person dissatisfied with the action of the board in refusing his application or suspending or revoking his license, or any other action of the board, may appeal the action of the board by filing a petition within thirty (30) days thereafter in the circuit court in the county where the person resides or in the Circuit Court of Hinds County, Mississippi, and the court is vested with jurisdiction and it shall be the duty of the court to set the matter for hearing upon ten (10) days' written notice to the board and the attorney representing the board. The court in which the petition of appeal is filed shall determine whether or not a cancellation or suspension of a license shall be abated until the hearing shall have been consummated with final judgment thereon or whether any other action of the board should be suspended pending hearing, and enter its order accordingly, which shall be operative when served upon the board, and the court shall provide the attorney representing the board with a copy of the petition and order. Except as otherwise authorized in Section 7-5-39 or unless the board uses an attorney hired under the provisions of Section 1 of House Bill No._____, 2013 Regular Session, the board shall be represented in such appeals by the district or county attorney of the county or the Attorney General, or any of their assistants. The board shall initially determine all facts, but the court upon appeal shall set aside the determination of the board if the board's determination (1) is not based upon substantial evidence upon the entire record; (2) is arbitrary or capricious; (3) is in violation of statutory requirements; or (4) was made without affording to licensee or applicant due process of law.
Actions taken by the board in suspending a license when required by Section 93-11-157 or 93-11-163 are not actions from which an appeal may be taken under this section. Any appeal of a license suspension that is required by Section 93-11-157 or 93-11-163 shall be taken in accordance with the appeal procedure specified in Section 93-11-157 or 93-11-163, as the case may be, rather than the procedure specified in this section.
SECTION 39. Section 73-29-43, Mississippi Code of 1972, is amended as follows:
73-29-43. If any person
violates any provisions of this chapter, the secretary shall, upon direction of
a majority of the board, in the name of the State of Mississippi, through the * * *
board's
attorney, except as otherwise authorized in Section 7-5-39, apply in any
chancery court of competent jurisdiction, for an order enjoining such violation
or for an order enforcing compliance with this chapter. Upon the filing of a
verified petition in the court, the court, or any judge thereof, if satisfied
by affidavit or otherwise that the person has violated this chapter, may issue
a temporary injunction, without notice or bond, enjoining such continued
violation and if it is established that the person has violated or is violating
this chapter, the court, or any judge thereof, may enter a decree perpetually
enjoining the violation or enforcing compliance with this chapter. In case of
violation of any order or decree issued under the provisions of this section,
the court, or any judge thereof, may try and punish the offender for contempt
of court. Proceedings under this section shall be in addition to, and not in
lieu of, all other remedies and penalties provided by this chapter.
SECTION 40. Section 73-36-35, Mississippi Code of 1972, is amended as follows:
73-36-35. Any person who
practices or offers to practice the profession of forestry in this state
without being registered in accordance with this chapter, or any person who
uses in connection with his name, or otherwise assumes, uses or advertises
any title or description tending to convey the impression that he is a
registered forester without being registered in accordance with this chapter,
or any person who presents or attempts to use as his own the license of
another, or any person who gives any false or forged evidence of any
kind to the board or any member in obtaining a license, or any person who attempts
to use an expired or revoked license, or any person, firm, partnership or
corporation who violates any of the provisions of this chapter and has
not been issued an administrative fine by the board for the violation is guilty
of a misdemeanor and, upon conviction, shall be fined not more than Five
Thousand Dollars ($5,000.00) for each violation. The board, or any person or
persons as may be designated by the board to act in its stead, is empowered to
prefer charges for any violations of this chapter in any court of competent
jurisdiction. It shall be the duty of all duly constituted officers of the law
of this state to enforce the provisions of this chapter and to prosecute any
persons, firms, partnerships or corporations violating same. Except as
otherwise authorized in Section 7-5-39, the attorney * * * hired
under the provisions of Section 1 of House Bill No.____, 2013 Regular Session,
shall act as legal advisor of the board and render such assistance as may be
necessary in carrying out the provisions of this chapter.
SECTION 41. Section 73-63-25, Mississippi Code of 1972, is amended as follows:
73-63-25. Except as
otherwise authorized in Section 7-5-39, the attorney * * *
hired under the
provisions of Section 1 of House Bill No.____, 2013 Regular Session, shall
be counsel and attorney for the board and shall provide any legal services as
may be requested by the board from time to time. The board may retain outside
counsel and investigators to provide any legal and investigative assistance as
may be necessary in enforcing this chapter as authorized in Chapter 546, Laws
of 2012.
SECTION 42. Section 75-76-25, Mississippi Code of 1972, is amended as follows:
75-76-25. Except as
otherwise authorized in Section 7-5-39, the attorney * * * hired under the
provisions of Secion 1 of House Bill No.____, 2013 Regular Session, shall
represent the commission and the executive director in any proceeding to which
the commission or the executive director is a party under this chapter and
shall also advise the commission and the executive director in all other
matters, including representing the commission when the commission sits in a
quasi-judicial capacity.
SECTION 43. Section 83-1-5, Mississippi Code of 1972, is amended as follows:
83-1-5. The commissioner shall receive a compensation to be fixed by law. He is hereby authorized to employ a clerk and stenographer and an actuary at a salary to be fixed by law; and in addition shall be allowed a sufficient sum for traveling expenses and for extra clerical help.
Further, the commissioner may appoint or employ special counsel pursuant to the provisions of Section 7-5-39 or Section 1 of House Bill No.___, 2013 Regular Session.
SECTION 44. 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 * * * hired under the provisions of House
Bill No._____, 2013 Regular Session, 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.
(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 45. This act shall take effect and be in force from and after July 1, 2013.