MISSISSIPPI LEGISLATURE
2016 Regular Session
To: Judiciary A
By: Representative Baker
AN ACT TO CREATE THE "MISSISSIPPI PUBLIC CORRUPTION ACT OF 2016"; TO AMEND SECTION 7-7-1, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT "STATE AUDITOR" MEANS THE STATE INSPECTOR GENERAL; TO PROVIDE THAT "STATE INSPECTOR GENERAL" MEANS STATE AUDITOR OR HIS OR HER DESIGNEES OR STATE AUDITOR AND HIS OR HER DESIGNEES; TO CREATE THE MISSISSIPPI PUBLIC CORRUPTION UNIT WITHIN THE MISSISSIPPI OFFICE OF THE STATE AUDITOR; TO PROVIDE AUTHORITY TO THE STATE AUDITOR TO EMPLOY OUTSIDE COUNSEL FOR THE ENFORCEMENT OF THE MISSISSIPPI PUBLIC CORRUPTION ACT; TO PROHIBIT THE INTRODUCTION INTO EVIDENCE OF ANY INFORMATION OBTAINED FROM A WIRE OR ORAL COMMUNICATION INTERCEPTED IN VIOLATION OF THIS ACT; TO ALLOW JUSTICES OF THE SUPREME COURT AND CIRCUIT COURT JUDGES TO ISSUE ORDERS AUTHORIZING THE INTERCEPTION OF WIRE OR ORAL COMMUNICATIONS IF THERE IS PROBABLE CAUSE TO BELIEVE THAT THE INTERCEPTION WILL PROVIDE EVIDENCE OF A VIOLATION OF THE MISSISSIPPI PUBLIC CORRUPTION ACT; TO AUTHORIZE THE STATE INSPECTOR GENERAL TO OWN, POSSESS, INSTALL, OPERATE OR MONITOR AN ELECTRONIC OR OTHER DEVICE USED IN THE INTERCEPTION OF WIRE OR ORAL COMMUNICATIONS; TO REQUIRE APPLICATIONS FROM THE STATE INSPECTOR GENERAL FOR AN ORDER AUTHORIZING INTERCEPTION OF A WIRE OR ORAL COMMUNICATION TO CONTAIN CERTAIN INFORMATION; TO ALLOW THE ISSUANCE OF SUCH ORDERS ONLY AFTER THE ISSUING JUDGE MAKES CERTAIN FINDINGS; TO REQUIRE THE ORDER TO CONTAIN CERTAIN INFORMATION; TO PLACE CERTAIN RESTRICTIONS UPON SUCH ORDERS; TO REQUIRE THE NOTIFICATION OF PERSONS WHOSE COMMUNICATIONS ARE INTERCEPTED WITHIN 90 DAYS AFTER TERMINATION OF THE ORDER; TO PLACE CERTAIN RESTRICTIONS UPON THE USE OF INTERCEPTED COMMUNICATIONS AS EVIDENCE; TO REQUIRE CERTAIN INFORMATION REGARDING THE ISSUANCE OR DENIAL OF AN ORDER TO BE REPORTED TO THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS; TO PROVIDE CERTAIN CIVIL PENALTIES IN FAVOR OF ANY PERSON WHOSE COMMUNICATIONS ARE INTERCEPTED IN VIOLATION OF THIS ACT; TO PROVIDE CRIMINAL PENALTIES FOR CERTAIN VIOLATIONS OF THIS ACT; TO AMEND SECTION 7-7-211, MISSISSIPPI CODE OF 1972, TO PROVIDE THE OFFICE OF THE STATE AUDITOR WITH THE AUTHORITY TO PETITION THE COURT TO THE IMPANELING OF A STATE GRAND JURY; TO AMEND SECTIONS 13-7-3, 13-7-7, 13-7-11, 13-7-15, 13-7-21, 13-7-25, 13-7-29 AND 13-7-41, MISSISSIPPI CODE OF 1972, TO REVISE PROVISIONS OF THE STATE GRAND JURY ACT IN CONFORMITY TO THE PRECEDING PROVISIONS; TO AMEND SECTIONS 41-29-507, 41-29-509 AND 41-29-513, MISSISSIPPI CODE OF 1972, IN CONFORMITY TO THE PRECEDING PROVISIONS; TO REPEAL SECTION 7-7-73, MISSISSIPPI CODE OF 1972, WHICH REQUIRES THE STATE AUDITOR TO NOTIFY THE GOVERNOR AND THE PROPER DISTRICT ATTORNEY OF ANY REASONABLE BELIEF THAT A PUBLIC OFFICER OR EMPLOYEE HAS EMBEZZLED ANY PUBLIC FUNDS, REQUIRES HIS ATTENDANCE AT TRIAL AS THE STATE'S WITNESS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act shall be known, and may be cited as the "Mississippi Public Corruption Act of 2016."
SECTION 2. Section 7-7-1, Mississippi Code of 1972, is amended as follows:
7-7-1. (1) As used in this chapter, the terms "State Auditor" and "Auditor" mean the Auditor of Public Accounts and State Inspector General. Whenever these terms and the term "Office of the State Auditor" appear in any other provisions of law, it shall mean the Mississippi Office of the State Auditor and Inspector General. Whenever the term "State Inspector General" appears, it shall also mean the State Auditor or his or her designees or the State Auditor and his or her designee or designees.
(2) As used in this chapter, the term "State Fiscal Officer" means the official created in Section 27-104-5, acting through the Bureau of Budget and Fiscal Management.
(3) "Agency" means any state board, commission, committee, council, department or unit thereof created by the Constitution or statutes if such board, commission, committee, council, department, unit or the head thereof is authorized to appoint subordinate staff by the Constitution or statute, except a legislative or judicial board, commission, committee, council, department or unit thereof.
(4) For the purposes of Sections 7-7-1 through 7-7-65, the term "public funds" shall mean all funds which are received, collected by, or available for the support of or expenditure by any state department, institution or agency, whether such funds be derived from taxes or from fees collected by such state department, institution or agency or from some other source, and which should be included in the entity of the state under generally accepted accounting principles, although such funds may not be required by law to be deposited in the State Treasury.
Funds such as endowment funds and research funds, special building and plant funds, funds of a proprietary function, and the like shall be excluded from the meaning of the term, unless specifically required by law to be handled through the State Treasury or unless deemed necessary by the State Fiscal Officer to be included.
All funds of state departments, institutions and agencies within the contemplation of this section that are not required by law to be deposited in the State Treasury, or are not declared to be exempt from the provisions of Sections 7-7-1 through 7-7-65 by the State Fiscal Officer shall be reported to the State Fiscal Officer in reports of revenues, expenditures, assets, liabilities, encumbrances, fund balances and other financial statements, at such times and in the form required by the State Fiscal Officer.
It is hereby declared to be the intent of this section to provide that all "public funds" necessary to present a complete and comprehensive statement of the fiscal operations of the state government shall be handled through the State Fiscal Officer, whether through State Fiscal Officer receipt warrants and disbursement warrants, as is generally provided, or through the method of reporting, as required herein.
SECTION 3. (1) The Mississippi Public Corruption Unit is created within the Mississippi Office of the State Auditor and Inspector General to investigate and assist in the management of allegations of participation in criminal activity resulting in a breach of public trust and/or abuse of position by an individual elected, appointed or employed to serve as a peace officer for a federal, state or local governmental entity or political subdivision of this state.
(2) The Mississippi Public Corruption Unit shall:
(a) Assist the State Inspector General in the investigation and prosecution of allegations described by subsection (1) of this section;
(b) If requested by the Mississippi Office of the State Auditor and State Inspector General, assist a state or local law enforcement agency with the investigation of such allegations against law enforcement officers in the agency;
(c) Assist the United States Department of Justice or any other appropriate federal department or agency in the investigation and prosecution of allegations described by subsection (1) of this section;
(d) If requested by the Mississippi Office of the State Auditor and State Inspector General, assist a federal law enforcement agency with the investigation of such allegations against law enforcement officers in the agency;
(e) Serve as a clearinghouse for information relating to the investigation and prosecution of allegations described by subsection (1) of this section; and
(f) Report to the State Auditor and Inspector General.
(3) On written approval of the State Inspector General or his designee, the Mississippi Public Corruption Unit may initiate an investigation of an allegation of participation in organized criminal activity by a law enforcement officer described by subsection (1) of this section. Written approval under this subsection must be based on probable cause.
(4) To the extent allowed by law, a state or local law enforcement agency shall cooperate with the Mississippi Public Corruption Unit by providing information requested by the unit as necessary to carry out the purposes of this section. Information described by these subsections (1) through (4) of this section is excepted from required disclosure under the Mississippi Public Records Act of 1983.
SECTION 4. (1) The Mississippi Office of the State Auditor and Inspector General may appoint and employ outside counsel on a fee or contractual basis. The State Inspector General shall be the sole judge of the compensation in such cases except as otherwise provided in Section 6 of this act, and shall, in contractual employment, stipulate the such outside counsel may be discharged of his or her duty at the will and pleasure of the State Inspector General.
(a) Any contract for services of outside counsel shall require current and complete written time and expense records that describe in detail the time, in increments of no greater than one tenth (1/10) of an hour, and money spent each day in performance of the contract.
(b) On conclusion of the matter for which the outside legal services were obtained, outside counsel shall provide a complete written statement of all fees and expenses, and the final complete time and expense records.
(2) The State Inspector General may discharge outside counsel at his pleasure, and may appoint and employ another in his stead on a fee or contractual basis, as provided under subsection (1) of this section. The outside counsel shall devote their entire time and attention only to the duties pertaining to matters of public corruption which shall be under the control and supervision of the State Inspector General for investigation and prosecution.
SECTION 5. (1) The Governor may engage outside counsel on a noncontingent fee basis to assist the State Inspector General in cases arising out of public corruption to which, in his opinion, the interest of the state requires it, subject to the action of the Legislature in providing compensation for such services not to exceed recognized bar rates for similar services.
(2) (a) The State Inspector General is hereby authorized and empowered to appoint and employ outside counsel, on a fee or salary basis not to exceed recognized bar rates for similar services, to assist the State Inspector General in the preparation for, prosecution, or defense of any litigation in the state or federal courts or before any federal commission or agency arising out of public corruption in which the state has an interest.
(b) If the compensation agreed upon will be governed by a contingency fee contract, that contract must conform with the requirements of Section 6 of this act.
(3) The State Inspector General may also employ special investigators on a per diem or salary basis, to be agreed upon at the time of employment, for the purpose of interviewing witnesses, ascertaining facts, or rendering any other services that may be needed by the State Inspector General in the preparation for and prosecution of suits by the State of Mississippi, or in suits in which the State Inspector General is participating on account of same being of statewide interest.
(4) The State Inspector General may pay travel and other expenses of employees and appointees under this chapter in the same manner and amount as authorized by law for the payment of travel and expenses of state employees and officials.
(5) The compensation of appointees and employees under this chapter shall be paid out of the Mississippi Office of the State Auditor and State Inspector General's contingent fund, or out of any other funds appropriated to the State Auditor and Inspector General's office.
SECTION 6. (1) Before entering into a contingency fee contract with outside counsel, the Mississippi Office of the State Auditor and Inspector General acting in the capacity of the State Inspector General must first make a written determination that contingency fee representation is both cost-effective and in the public interest. The required written determination shall include specific findings for each of the following factors:
(a) Whether there exists sufficient and appropriate legal and financial resources within the State Inspector General's office to handle the matter;
(b) The time and labor required; the novelty, complexity, and difficulty of the questions involved; and the skill requisite to perform the attorney services properly;
(c) The geographic area where the attorney services are to be provided; and
(d) The amount of experience desired for the particular kind of attorney services to be provided and the nature of the outside attorney's experience with similar issues or cases.
(2) (a) The Mississippi Office of the State Auditor and Inspector General acting in the capacity of State Inspector General may not enter into a contingency fee contract that provides for the outside attorney to receive a contingency fee, exclusive of reasonable costs and expenses incurred in connection with the case, which is in excess of the following:
(i) Twenty-five percent (25%) of any recovery of up to Ten Million Dollars ($10,000,000.00); plus
(ii) Twenty percent (20%) of any portion of such recovery between Ten Million Dollars ($10,000,000.00) and Fifteen Million Dollars ($15,000,000.00); plus
(iii) Fifteen percent (15%) of any portion of such recovery between Fifteen Million Dollars ($15,000,000.00) and Twenty Million Dollars ($20,000,000.00); plus
(iv) Ten percent (10%) of any portion of such recovery between Twenty Million Dollars ($20,000,000.00) and Twenty-five Million Dollars (25,000,000.00); plus
(v) Five percent (5%) of any portion of such recovery exceeding Twenty-five Million Dollars ($25,000,000.00).
(b) Except as provided in subsection (3) of this section, a contingency fee shall not exceed an aggregate of Fifty Million Dollars ($50,000,000.00), exclusive of reasonable costs and expenses incurred in connection with the case, and irrespective of the number of lawsuits filed or the number of attorneys retained to achieve the recovery.
(c) A contingency fee shall not be based on penalties or civil fines awarded or any amounts attributable to penalties or civil fines.
(3) The limits on fees set forth in subsection (2) of this section shall not apply if:
(a) The Mississippi Office of the State Auditor and Inspector General acting in the capacity of the State Inspectors General makes a written determination stating the reasons why a greater fee is necessary, proper, and in the best interests of the state in a particular case; and
(b) The Outside Counsel Oversight Commission, created under the provisions of Section 7-5-8(4), approves any terms of the contingency contract that exceed the limits set forth in subsection (2) of this section.
(4) (a) Copies of any executed contingency fee contract and the applicable written determination to enter into a contingency fee contract with the outside attorney shall be posted on the State Inspector General's website for public inspection within five (5) business days after the date the contract is executed unless the state, arm or agency of the state, or statewide elected officer retaining outside counsel makes a determination, subject to the approval of the Outside Counsel Oversight Commission, that to do so would negatively affect the state's interest, and shall remain posted on the website for the duration of the contingency fee contract, including any extensions or amendments to the contract.
(b) If the determination is made and duly approved that posting the contract will negatively affect the interests of the state, the contract will be posted on the State Inspector General's website within five (5) days of the occurrence of the earliest of the following:
(i) Filing of the lawsuit for which the contract was executed;
(ii) Entry of appearance for any pending matter for which the contract was executed; or
(iii) From the time the outside attorney engages in any substantive action on behalf of the state relative to the subject matter for which the contract was executed.
(c) Any payment of contingency fees shall be posted on the State Inspector General's website within fifteen (15) days after the payment of the contingency fees to the outside attorney and shall remain posted on the website for at least one (1) year after the date payment is made.
(6) An outside attorney under contract to provide services to the state on a contingency fee basis shall, from the inception of the contract until not less than four (4) years after the contract expires or is terminated, maintain detailed current records, including documentation of all expenses, disbursements, charges, credits, underlying receipts and invoices, and other financial transactions that concern the providing of attorney services. In addition, the outside attorney shall maintain detailed contemporaneous time records for the attorneys and paralegals working on the matter in increments of no greater than one-tenth (1/10) of an hour, and shall promptly provide these records to the State Inspector General upon request.
SECTION 7. The State Inspector General shall keep a docket of all causes in which he is required to appear, whether through his office or through outside counsel, which is a public record and must show the full style of the case, the cause number of the action, the county, district and court in which the causes have been instituted and tried, and whether the case is civil or criminal. If civil, the docket must show the nature of the demand, the stage of the proceedings, the name and address of any outside counsel, a description of the fee arrangement with any outside counsel, a memorandum of the judgment when prosecuted to judgment, any process issued thereon, whether satisfied or not, and if not satisfied, the return of the sheriff. If criminal, the docket must show the nature of the crime, the mode of prosecution, the stage of the proceedings, a memorandum of the sentence when prosecuted to a sentence, the execution thereof, if executed, and, if not executed, the reasons of delay or prevention.
SECTION 8. As used in this act, the following terms shall have the meaning ascribed to them in this section unless the context requires otherwise:
(a) "Aggrieved person" means a person who was a party to an intercepted wire, oral or other communication or a person against whom the interception was directed.
(b) "Communication common carrier" has the meaning given the term "common carrier" by 47 USCS 153(h) and shall also mean a provider of communication services.
(c) "Contents," when used with respect to a wire, oral or other communication, includes any information concerning the identity of the parties to the communication or the existence, substance, purport or meaning of that communication.
(d) "Covert entry" means any entry into or onto premises which if made without a court order allowing such an entry under this article would be a violation of criminal law.
(e) "Director" means the Director of the Bureau of Investigation of the Mississippi Department of Public Safety or, if the director is absent or unable to serve, the Assistant Director of the Bureau of Investigation.
(f) "Electronic, mechanical or other device" means a device or apparatus primarily designed or used for the nonconsensual interception of wire, oral or other communications.
(g) "Intercept" means the aural or other acquisition of the contents of a wire, oral or other communication through the use of an electronic, mechanical or other device.
(h) "Investigative or law enforcement officer" means an officer of this state or of a political subdivision of this state who is empowered by law to conduct investigations of, or to make arrests for, offenses enumerated in Section 41-29-505, an attorney authorized by law to prosecute or participate in the prosecution of such offenses, or a federal law enforcement officer designated by the director.
(i) "Judge of competent jurisdiction" means a justice of the Supreme Court or a circuit court judge.
(j) "Oral communication" means an oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying that expectation.
(k) "Other communication" means any transfer of an electronic or other signal, including fax signals, computer generated signals, other similar signals, or any scrambled or encrypted signal transferred via wire, radio, electromagnetic, photoelectric or photooptical system from one party to another in which the involved parties may reasonably expect the communication to be private.
(l) "Prosecutor" means a district attorney with jurisdiction in the county in which the facility or place where the communication to be intercepted is located or a legal assistant to the district attorney if designated in writing by the district attorney on a case-by-case basis.
(m) "Residence" means a structure or the portion of a structure used as a person's home or fixed place of habitation to which the person indicates an intent to return after any temporary absence.
(n) "State Auditor" and "Auditor" mean the Auditor of Public Accounts and State Inspector General. Whenever these terms and the term "Office of the State Auditor" appear in any other provisions of law, it shall mean the Mississippi Office of the State Auditor and Inspector General.
(o) "State Inspector General" means the State Auditor or his designees, or the State Auditor and his designee or designees.
(p) "Wire communication" means a communication made, in whole or in part, through the use of facilities for the transmission of communications by the aid of wire, cable or other like connection between the point of origin and the point of reception furnished or operated by a person engaged as a common carrier in providing or operating the facilities for the transmission of communications and includes cordless telephones, voice pagers, cellular telephones, any mobile telephone, or any communication conducted through the facilities of a provider of communication services.
SECTION 9. (1) The Mississippi Office of the State Auditor and Inspector General acting in the capacity of the State Inspector General is authorized to submit application to a judge of competent jurisdiction in the applicable circuit court district to intercept wire, oral or other communication for the purpose of carrying out the provisions of this act.
(2) A judge of competent jurisdiction in the circuit court district of the location where the interception of wire, oral or other communications is sought, or a circuit court district contiguous to such circuit court district, may issue an order authorizing interception of wire, oral or other communications only if the State Inspector General applying for the order shows probable cause to believe that the interception will provide evidence of the commission of a felony under the Mississippi Public Corruption Act.
(3) The contents of an intercepted wire, oral or other communication and evidence derived from an intercepted wire, oral or other communication may not be received in evidence in any trial, hearing or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States or of this state or a political subdivision of this state if the disclosure of that information would be in violation of this article. The contents of an intercepted wire, oral or other communication and evidence derived from an intercepted communication may be received in a civil trial, hearing or other proceeding only if the civil trial, hearing or other proceeding arises out of a violation of a criminal law of this state.
SECTION 10. (1) An investigative or law enforcement officer who, by any means authorized by this act, obtains knowledge of the contents of a wire, oral or other communication or evidence derived from such communication may disclose the contents or evidence to another investigative or law enforcement officer to the extent that the disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.
(2) An investigative or law enforcement officer who, by any means authorized by this act, obtains knowledge of the contents of a wire, oral or other communication or evidence derived from such communication may use the contents or evidence to the extent the use is appropriate to the proper performance of his official duties.
(3) A person who receives, by any means authorized by this act, information concerning a wire, oral or other communication or evidence derived from a wire, oral or other communication intercepted in accordance with the provisions of this article may disclose the contents of such communication or the evidence derived from such wire, oral or other communication while giving testimony under oath in any proceeding held under the authority of the United States, of this state, or of a political subdivision of this state.
(4) An otherwise privileged wire, oral or other communication intercepted in accordance with, or in violation of, the provisions of this article does not lose its privileged character, and any evidence derived from such privileged communication against the party to the privileged communication shall be considered privileged also.
(5) When an investigative or law enforcement officer, while engaged in intercepting wire, oral or other communications in a manner authorized by this act, intercepts wire, oral or other communications relating to offenses other than those specified in the order of authorization, the contents of and evidence derived from the communication may be disclosed or used as provided by subsections (1) and (2) of this section. Such contents and any evidence derived therefrom may be used under subsection (3) of this section when authorized by a judge of competent jurisdiction where the judge finds, upon subsequent application, that the contents were otherwise intercepted in accordance with the provisions of this article. The application shall be made as soon as practicable.
SECTION 11. (1) Upon receipt of an application by the State Inspector General to intercept wire, oral or other communications, the judge may enter an ex parte order, as requested or as modified, authorizing interception of wire, oral or other communications if the judge determines from the evidence submitted that:
(a) There is probable cause to believe that a person is committing, has committed, or is about to commit a particular offense enumerated in this act;
(b) There is probable cause to believe that particular communications concerning that offense will be obtained through the interception;
(c) Normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed or to be too dangerous if tried;
(d) There is probable cause to believe that the facilities from which or the place where the wire, oral or other communications are to be intercepted are being used or are about to be used in connection with the commission of an offense or are leased to, listed in the name of, or commonly used by the person; and
(e) A covert entry is or is not necessary to properly and safely install the electronic, mechanical or other device.
(2) Each order authorizing the interception of a wire or oral communication shall specify:
(a) The identity of the person, if known, whose communications are to be intercepted;
(b) The nature and location of the communications facilities as to which or the place where authority to intercept is granted;
(c) A particular description of the type of communication sought to be intercepted and a statement of the particular offense to which it relates;
(d) A statement setting forth that the State Inspector General or the Director of the Mississippi Bureau of Investigation has requested the State Inspector General to apply for the order authorizing the interception;
(e) The time during which the interception is authorized, including a statement of whether or not the interception will automatically terminate when the described communication is first obtained; and
(f) Whether or not a covert entry is necessary to properly and safely install wiretapping, electronic surveillance or eavesdropping equipment.
(3) The order authorizing the interception of a wire, oral or other communication shall, upon request of the State Inspector General, direct that a communication common carrier, landlord, custodian or other person furnish the applicant all information, facilities and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that the carrier, landlord, custodian or other person is providing the person whose communications are to be intercepted. Any communication common carrier, landlord, custodian or other person furnishing facilities or technical assistance is entitled to compensation by the applicant for the facilities or assistance at the prevailing rates.
(4) An order entered pursuant to this section may not authorize the interception of a wire, oral or other communication for longer than is necessary to achieve the objective of the authorization, and in no event may it authorize interception for more than thirty (30) days. The issuing judge may grant extensions of an order, but only upon application for an extension made in accordance with Section 41-29-513 and the court making the findings required by subsection (1) of this section. The period of extension may not be longer than the authorizing judge deems necessary to achieve the purposes for which it is granted, and in no event may the extension be for more than thirty (30) days. To be valid, each order and extension of an order shall provide that the authorization to intercept be executed as soon as practicable, be conducted in a way that minimizes the interception of communications not otherwise subject to interception under this article, and terminate on obtaining the authorized objective or within thirty (30) days, whichever occurs sooner.
(5) An order entered pursuant to this section may not authorize a covert entry into a residence solely for the purpose of intercepting a wire communication.
(6) An order entered pursuant to this section may not authorize a covert entry into or onto a premises for the purpose of intercepting an oral or other communication unless:
(a) The judge, in addition to making the determinations required under subsection (1) of this section, determines that:
(i) The premises into or onto which the covert entry is authorized or the person whose communications are to be obtained has been the subject of a pen register previously authorized in connection with the same investigation;
(ii) The premises into or onto which the covert entry is authorized or the person whose communications are to be obtained has been the subject of an interception of wire communications previously authorized in connection with the same investigation;
(iii) That such procedures have failed; and
(iv) If the order is for the interception of other communications and requires covert entry, a court-ordered attempt to intercept the communications without using covert entry must have been made without success;
(b) That the procedures enumerated in paragraph (a)(i) of this section reasonably appear to be unlikely to succeed or to be too dangerous if tried or are not feasible under the circumstances or exigencies of time; and
(c) The order, in addition to the matters required to be specified under subsection (2) of this section, specifies that the covert entry is for the purpose of intercepting oral communications of two (2) or more persons and that there is probable cause to believe they are committing, have committed, or are about to commit a particular offense enumerated in this act.
(7) The judge of a court of competent jurisdiction may issue an order for the interception of wire, oral or other communications conducted within a vehicle, vessel, other mode of transportation or any location where a reasonable expectation of privacy might exist, provided the requirements of this section, where applicable, are met.
(8) Whenever an order authorizing interception is entered pursuant to this article, the order may require reports to the judge who issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception. Reports shall be made at any interval the judge requires.
(9) A judge who issues an order authorizing the interception of a wire, oral or other communication may not hear a criminal prosecution in which evidence derived from the interception may be used or in which the order may be an issue.
(10) An order issued pursuant to this section authorizing the interception of any cellular, portable, transportable or mobile telephone or communication instrument is valid throughout the State of Mississippi unless otherwise specified by the issuing judge.
SECTION 12. (1) The contents of a wire, oral or other communication intercepted by means authorized by this act shall be recorded on tape, wire or other comparable device. The recording of the contents of a wire, oral or other communication under this subsection shall be done in a way that protects the recording from editing or other alterations.
(2) Immediately on the expiration of the period of the order and all extensions, if any, the recordings shall be made available to the judge issuing the order and sealed under his directions. Custody of the recordings shall be wherever the judge orders. The recordings may not be destroyed until at least ten (10) years after the date of expiration of the order and the last extension, if any. A recording may be destroyed only by order of the judge of competent jurisdiction who authorized the interception, or his successor.
(3) Duplicate recordings may be made for use or disclosure pursuant to subsections (1) and (2) of Section 10 of this act for investigations.
(4) The presence of the seal required by subsection (2) of this section, or a satisfactory explanation of its absence, shall be a prerequisite for the use or disclosure of the contents of a wire, oral or other communication or evidence derived from the communication under subsection (3) of Section 10 of this act.
SECTION 13. The judge shall seal each application made and order granted under this act. Custody of the applications and orders shall be wherever the judge directs. An application or order may be disclosed only upon a showing of good cause before a judge of competent jurisdiction, and may not be destroyed until at least ten (10) years after the date it is sealed. An application or order may be destroyed only by order of the judge of competent jurisdiction for the administrative judicial district in which it was made or granted.
SECTION 14. A violation of Section 12 or Section 13 of this act shall be punished in the same manner as a person found in contempt of court.
SECTION 15. (1) Within a reasonable time but not later than ninety (90) days after the date an application for an order is denied or after the date an order or the last extension, if any, expires, the judge who granted or denied the application shall cause to be served upon the persons named in the order or the application and any other parties to intercepted communications deemed appropriate by the issuing judge, if any, an inventory, which shall include notice:
(a) Of the entry of the order or the application;
(b) Of the date of the entry and the period of authorized interception or the date of denial of the application; and
(c) That during the authorized period, wire, oral or other communications were or were not intercepted.
(2) The judge, upon motion, may, in his discretion, make available for inspection to any person or persons whose oral communications have been intercepted, or their counsel, any portion of an intercepted communication, application or order that the judge determines is in the interest of justice to disclose to that person.
(3) Upon an ex parte showing of good cause to the judge, the serving of the inventory required by this section may be postponed, but in no event may any evidence derived from an order under this article be disclosed in any trial until after such inventory has been served.
SECTION 16. (1) The contents of an intercepted wire, oral or other communication or evidence derived from the communication may not be received in evidence or otherwise disclosed in a trial, hearing or other proceeding in a federal or state court unless each party has been furnished with a copy of the court order and application under which the interception was authorized or approved not less than ten (10) days before the date of the trial, hearing or other proceeding. The ten-day period may be waived by the judge if he finds that it is not possible to furnish the party with the information ten (10) days before the trial, hearing or proceeding and that the party will not be prejudiced by the delay in receiving the information.
(2) An aggrieved person charged with an offense in a trial, hearing or proceeding in or before a court, department, officer, agency, regulatory body, or other authority of the United States or of this state or a political subdivision of this state, may move to suppress the contents of an intercepted wire, oral or other communication or evidence derived from the communication on the ground that:
(a) The communication was unlawfully intercepted;
(b) The order authorizing the interception is insufficient on its face; or
(c) The interception was not made in conformity with the order.
(3) The motion to suppress shall be made before the trial, hearing or proceeding unless there was no opportunity to make the motion before the trial, hearing or proceeding, or the person was not aware of the grounds of the motion before the trial, hearing or proceeding. The hearing on the motion shall be held in camera upon the written request of the aggrieved person. If the motion is granted, the contents of the intercepted wire, oral or other communication and evidence derived from the communication shall be treated as inadmissible evidence. The judge, on the filing of the motion by the aggrieved person, shall make available to the aggrieved person or his counsel for inspection any portion of the intercepted communication or evidence derived from the communication that the judge determines is in the interest of justice to make available.
(4) Any circuit judge of this state, upon hearing a pretrial motion regarding conversations intercepted by wire pursuant to this article, or who otherwise becomes informed that there exists on such intercepted wire, oral or other communication identification of a specific individual who is not a party or suspect to the subject of interception:
(a) Shall give notice and an opportunity to be heard on the matter of suppression of references to that person if identification is sufficient so as to give notice; or
(b) Shall suppress references to that person if identification is sufficient to potentially cause embarrassment or harm which outweighs the probative value, if any, of the mention of such person, but insufficient to require the notice provided for in paragraph (a) of this subsection.
SECTION 17. (1) Within thirty (30) days after the date of an order or the last extension, if any, expires or after the denial of an order, the issuing or denying judge shall report to the Administrative Office of the United States Courts:
(a) The fact that an order or extension was applied for;
(b) The kind of order or extension applied for;
(c) The fact that the order or extension was granted as applied for, was modified or was denied;
(d) The period of interceptions authorized by the order and the number and duration of any extensions of the order;
(e) The offense specified in the order or application or extension;
(f) The identity of the officer making the request and the prosecutor making the application; and
(g) The nature of the facilities from which or the place where communications were to be intercepted.
(2) In January of each year, the State Inspector General shall report to the Administrative Office of the United States Courts the following information for the preceding calendar year:
(a) The information required by subsection (1) of this section with respect to each application for an order or extension made;
(b) A general description of the interceptions made under each order or extension, including the approximate nature and frequency of incriminating communications intercepted, the approximate nature and frequency of order communications intercepted, the approximate number of persons whose communications were intercepted, and the approximate nature, amount and cost of the manpower and other resources used in the interceptions;
(c) The number of arrests resulting from interceptions made under each order or extension and the offenses for which arrests were made;
(d) The number of trials resulting from interceptions;
(e) The number of motions to suppress made with respect to interceptions and the number granted or denied;
(f) The number of convictions resulting from interceptions, the offenses for which the convictions were obtained, and a general assessment of the importance of the interceptions; and
(g) The information required by paragraphs (b) through (f) of this subsection with respect to orders or extensions obtained.
(h) The number of personnel authorized to possess, install or operate electronic, mechanical or other devices;
(i) The number of other law enforcement personnel who participated or engaged in the seizure of intercepts pursuant to this act during the preceding calendar year; and
(j) The total cost of all activities and procedures relating to the seizure of intercepts during the preceding calendar year, including costs of equipment, manpower and expenses incurred as compensation for use of facilities or technical assistance provided by the bureau.
SECTION 18. (1) A person whose wire, oral or other communication is intercepted, disclosed or used in violation of this act shall have a civil cause of action against any person who intercepts, discloses or uses or procures another person to intercept, disclose or use the communication, and is entitled to recover from the person:
(a) Actual damages but not less than liquidated damages computed at a rate of One Hundred Dollars ($100.00) a day for each day of violation or One Thousand Dollars ($1,000.00), whichever is higher;
(b) Punitive damages; and
(c) A reasonable attorney's fee and other litigation costs reasonably incurred.
(2) A good faith reliance on a court order is a complete defense to any civil or criminal action brought under this article.
SECTION 19. This act shall not apply to:
(a) An operator of a switchboard, or an officer, employee or agent of a communication common carrier whose facilities are used in the transmission of a wire communication, intercepts a communication, or who discloses or uses an intercepted communication in the normal course of employment while engaged in an activity that is a necessary incident to the rendition of service or to the protection of the rights or property of the carrier of the communication;
(b) An officer, employee or agent of a communication common carrier who employs or uses any equipment or device which may be attached to any telephonic equipment of any subscriber which permits the interception and recording of any telephonic communications solely for the purposes of business service improvements;
(c) An officer, employee or agent of a communication common carrier who provides information, facilities or technical assistance to an investigative or law enforcement officer who is authorized as provided by this article to intercept a wire, oral or other communication;
(d) A person acting under color of law who intercepts a wire, oral or other communication if the person is a party to the communication, or if one (1) of the parties to the communication has given prior consent to the interception; or
(e) A person not acting under color of law who intercepts a wire, oral or other communication if the person is a party to the communication, or if one (1) of the parties to the communication has given prior consent to the interception unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of this state, or for the purpose of committing any other injurious act.
SECTION 20. (1) Any person who knowingly and intentionally possesses, installs, operates or monitors an electronic, mechanical or other device in violation of this act shall be guilty of a misdemeanor and, upon conviction thereof, shall be sentenced to not more than one (1) year in the county jail or fined not more than Ten Thousand Dollars ($10,000.00), or both.
(2) Any person who violates the provisions of this act shall be guilty of a felony and, upon conviction thereof, shall be sentenced to not more than five (5) years in the State Penitentiary and fined not more than Ten Thousand Dollars ($10,000.00).
SECTION 21. This act shall not apply to a person who is a subscriber to a telephone operated by a communication common carrier and who intercepts a communication on a telephone to which he subscribes. This act shall not apply to persons who are members of the household of the subscriber who intercept communications on a telephone in the home of the subscriber.
SECTION 22. Section 7-7-211, Mississippi Code of 1972, is amended as follows:
7-7-211. The department shall have the power and it shall be its duty:
(a) To identify and define for all public offices of the state and its subdivisions generally accepted accounting principles or other accounting principles as promulgated by nationally recognized professional organizations and to consult with the State Fiscal Officer in the prescription and implementation of accounting rules and regulations;
(b) To provide best practices, for all public offices of regional and local subdivisions of the state, systems of accounting, budgeting and reporting financial facts relating to said offices in conformity with legal requirements and with generally accepted accounting principles or other accounting principles as promulgated by nationally recognized professional organizations; to assist such subdivisions in need of assistance in the installation of such systems; to revise such systems when deemed necessary, and to report to the Legislature at periodic times the extent to which each office is maintaining such systems, along with such recommendations to the Legislature for improvement as seem desirable;
(c) To study and analyze existing managerial policies, methods, procedures, duties and services of the various state departments and institutions upon written request of the Governor, the Legislature or any committee or other body empowered by the Legislature to make such request to determine whether and where operations can be eliminated, combined, simplified and improved;
(d) To postaudit each year and, when deemed necessary, preaudit and investigate the financial affairs of the departments, institutions, boards, commissions, or other agencies of state government, as part of the publication of a comprehensive annual financial report for the State of Mississippi, or as deemed necessary by the State Auditor. In complying with the requirements of this paragraph, the department shall have the authority to conduct all necessary audit procedures on an interim and year-end basis;
(e) To postaudit and, when deemed necessary, preaudit and investigate separately the financial affairs of (i) the offices, boards and commissions of county governments and any departments and institutions thereof and therein; (ii) public school districts, departments of education and junior college districts; and (iii) any other local offices or agencies which share revenues derived from taxes or fees imposed by the State Legislature or receive grants from revenues collected by governmental divisions of the state; the cost of such audits, investigations or other services to be paid as follows: Such part shall be paid by the state from appropriations made by the Legislature for the operation of the State Department of Audit as may exceed the sum of Thirty-five Dollars ($35.00) per man-hour for the services of each staff person engaged in performing the audit or other service plus the actual cost of any independent specialist firm contracted by the State Auditor to assist in the performance of the audit, which sum shall be paid by the county, district, department, institution or other agency audited out of its general fund or any other available funds from which such payment is not prohibited by law. Costs paid for independent specialists or firms contracted by the State Auditor shall be paid by the audited entity through the State Auditor to the specialist or firm conducting the postaudit.
Each school district in the state shall have its financial records audited annually, at the end of each fiscal year, either by the State Auditor or by a certified public accountant approved by the State Auditor. Beginning with the audits of fiscal year 2010 activity, no certified public accountant shall be selected to perform the annual audit of a school district who has audited that district for three (3) or more consecutive years previously. Certified public accountants shall be selected in a manner determined by the State Auditor. The school district shall have the responsibility to pay for the audit, including the review by the State Auditor of audits performed by certified public accountants;
(f) To postaudit and, when deemed necessary, preaudit and investigate the financial affairs of the levee boards; agencies created by the Legislature or by executive order of the Governor; profit or nonprofit business entities administering programs financed by funds flowing through the State Treasury or through any of the agencies of the state, or its subdivisions; and all other public bodies supported by funds derived in part or wholly from public funds, except municipalities which annually submit an audit prepared by a qualified certified public accountant using methods and procedures prescribed by the department;
(g) To make written demand, when necessary, for the recovery of any amounts representing public funds improperly withheld, misappropriated and/or otherwise illegally expended by an officer, employee or administrative body of any state, county or other public office, and/or for the recovery of the value of any public property disposed of in an unlawful manner by a public officer, employee or administrative body, such demands to be made (i) upon the person or persons liable for such amounts and upon the surety on official bond thereof, and/or (ii) upon any individual, partnership, corporation or association to whom the illegal expenditure was made or with whom the unlawful disposition of public property was made, if such individual, partnership, corporation or association knew or had reason to know through the exercising of reasonable diligence that the expenditure was illegal or the disposition unlawful. Such demand shall be premised on competent evidence, which shall include at least one (1) of the following: (i) sworn statements, (ii) written documentation, (iii) physical evidence, or (iv) reports and findings of government or other law enforcement agencies. Other provisions notwithstanding, a demand letter issued pursuant to this paragraph shall remain confidential by the State Auditor until the individual against whom the demand letter is being filed has been served with a copy of such demand letter. If, however, such individual cannot be notified within fifteen (15) days using reasonable means and due diligence, such notification shall be made to the individual's bonding company, if he or she is bonded. Each such demand shall be paid into the proper treasury of the state, county or other public body through the office of the department in the amount demanded within thirty (30) days from the date thereof, together with interest thereon in the sum of one percent (1%) per month from the date such amount or amounts were improperly withheld, misappropriated and/or otherwise illegally expended. In the event, however, such person or persons or such surety shall refuse, neglect or otherwise fail to pay the amount demanded and the interest due thereon within the allotted thirty (30) days, the State Auditor shall have the authority and it shall be his duty to institute suit, and the Attorney General shall prosecute the same in any court of the state to the end that there shall be recovered the total of such amounts from the person or persons and surety on official bond named therein; and the amounts so recovered shall be paid into the proper treasury of the state, county or other public body through the State Auditor. In any case where written demand is issued to a surety on the official bond of such person or persons and the surety refuses, neglects or otherwise fails within one hundred twenty (120) days to either pay the amount demanded and the interest due thereon or to give the State Auditor a written response with specific reasons for nonpayment, then the surety shall be subject to a civil penalty in an amount of twelve percent (12%) of the bond, not to exceed Ten Thousand Dollars ($10,000.00), to be deposited into the State General Fund;
(h) To investigate any
alleged or suspected violation of the laws of the state by any officer or
employee of the state, county or other public office in the purchase, sale or
the use of any supplies, services, equipment or other property belonging
thereto; and in such investigation to do any and all things necessary to
procure evidence sufficient either to prove or disprove the existence of such alleged
or suspected violations. The * * * Bureau of
Investigation of the State Department of Audit may investigate, for the purpose
of prosecution, any suspected criminal violation of the provisions of this
chapter. For the purpose of administration and enforcement of this chapter,
the enforcement employees of the * * * Bureau of
Investigation of the State Department of Audit have the powers of a law
enforcement officer of this state, and shall be empowered to make arrests and
to serve and execute search warrants and other valid legal process anywhere
within the State of Mississippi. All enforcement employees of the * * * Bureau of
Investigation of the State Department of Audit hired on or after July 1, 1993,
shall be required to complete the Law Enforcement Officers Training Program and
shall meet the standards of the program;
(i) To examine the
documents, books, records, data, papers, accounts, communications, information,
vouchers or other evidence for the purpose of investigating any officer or
employee of a state, county, municipal or other public entity and to conduct
interviews of any officer or employee of the state, county, municipal or other
public entity without interference of any state, county, municipal or other
public entity, any nongovernmental entity that receives public funds and any
persons, firms, corporations or any other entities insofar as such evidence
relates to dealings with any state, county, municipal or other public entity.
If the Mississippi Office of the State Auditor and Inspector General issues a
request to receive the information listed in this paragraph (i) to an entity
and the entity does not respond to the request for information or provide the
requested information within the time provided in the request for information,
the Office of the State Auditor may, in its discretion, * * * issue subpoenas, with the approval of, and
returnable to, a judge of a chancery or circuit court, in termtime or in
vacation, to examine the documents, books, records, data, papers, accounts,
communications, information, vouchers or other evidence and to conduct
interviews without interference of any state, county, municipal or other public
entity, any nongovernmental entity that receives public funds and any persons,
firms, corporations or any other entities insofar as such evidence relates to
dealings with any state, county, municipal or other public entity. * * *
The circuit or chancery judge must serve the county in which the records,
documents or other evidence is located; or where all or part of the transaction
or transactions occurred which are the subject of the subpoena;
(j) In any instances in which the State Auditor is or shall be authorized or required to examine or audit, whether preaudit or postaudit, any books, ledgers, accounts or other records of the affairs of any public hospital owned or owned and operated by one or more political subdivisions or parts thereof or any combination thereof, or any school district, including activity funds thereof, it shall be sufficient compliance therewith, in the discretion of the State Auditor, that such examination or audit be made from the report of any audit or other examination certified by a certified public accountant and prepared by or under the supervision of such certified public accountant. Such audits shall be made in accordance with generally accepted standards of auditing, with the use of an audit program prepared by the State Auditor, and final reports of such audits shall conform to the format prescribed by the State Auditor. All files, working papers, notes, correspondence and all other data compiled during the course of the audit shall be available, without cost, to the State Auditor for examination and abstracting during the normal business hours of any business day. The expense of such certified reports shall be borne by the respective hospital, or any available school district funds other than minimum program funds, subject to examination or audit. The State Auditor shall not be bound by such certified reports and may, in his or their discretion, conduct such examination or audit from the books, ledgers, accounts or other records involved as may be appropriate and authorized by law;
(k) The State Auditor shall have the authority to contract with qualified public accounting firms to perform selected audits required in paragraphs (d), (e), (f) and (j) of this section, if funds are made available for such contracts by the Legislature, or if funds are available from the governmental entity covered by paragraphs (d), (e), (f) and (j). Such audits shall be made in accordance with generally accepted standards of auditing. All files, working papers, notes, correspondence and all other data compiled during the course of the audit shall be available, without cost, to the State Auditor for examination and abstracting during the normal business hours of any business day;
(l) The State Auditor shall have the authority to establish training courses and programs for the personnel of the various state and local governmental entities under the jurisdiction of the Office of the State Auditor. The training courses and programs shall include, but not be limited to, topics on internal control of funds, property and equipment control and inventory, governmental accounting and financial reporting, and internal auditing. The State Auditor is authorized to charge a fee from the participants of these courses and programs, which fee shall be deposited into the Department of Audit Special Fund. State and local governmental entities are authorized to pay such fee and any travel expenses out of their general funds or any other available funds from which such payment is not prohibited by law;
(m) Upon written
request by the Governor or any member of the State Legislature, or as the
State Auditor deems necessary due to an entity's use of public funds, the
State Auditor may audit * * *any the local, state * * * and federal funds received
by any nonprofit corporation incorporated under the laws of this state;
(n) To conduct performance audits of personal or professional service contracts by state agencies on a random sampling basis, or upon request of the State Personal Service Contract Review Board under Section 25-9-120(3); and
(o) At the discretion of the State Auditor, the Auditor may conduct risk assessments, as well as performance and compliance audits based on Generally Accepted Government Auditing Standards (GAGAS) of any state-funded economic development program authorized under Title 57, Mississippi Code of 1972. After risk assessments or program audits, the State Auditor may conduct audits of those projects deemed high-risk, specifically as they identify any potential wrongdoing or noncompliance based on objectives of the economic development program. The Auditor is granted authority to gather, audit and review data and information from the Mississippi Development Authority or any of its agents, the Department of Revenue, and when necessary under this paragraph, the recipient business or businesses or any other private, public or nonprofit entity with information relevant to the audit project. The maximum amount the State Auditor may bill the oversight agency under this paragraph in any fiscal year is One Hundred Thousand Dollars ($100,000.00), based on reasonable and necessary expenses.
(p) When the State Inspector General considers it necessary, and normal investigative or prosecutorial procedures are not adequate, he may petition in writing to the senior circuit court judge of any circuit court district in this state for an order impaneling a state grand jury under the authority of Chapter 7, Title 13, Mississippi Code of 1972, for any crimes under which the Mississippi Office of the State Auditor and Inspector General has the authority to prosecute under the provisions of the Mississippi Public Corruption Act enumerated in this act, which arise out of a breach of public trust and/or abuse of position by state, county, municipal or public entity officials and any private sector accomplices, or Sections 50 and 175 of the Mississippi Constitution of 1890.
SECTION 23. Section 13-7-3, Mississippi Code of 1972, is amended as follows:
13-7-3. For purposes of this chapter:
(a) The phrase "Attorney General or his designee" also includes:
(i) The Attorney General or his designees;
(ii) The Attorney General and his designee or designees.
(b) The term "impaneling judge" means any senior circuit court judge of any circuit court district who, upon petition by the Attorney General, impanels a state grand jury under the provisions of this chapter and shall also include any successor to such judge as provided by law.
(c) The phrase "State Inspector General or his designee" also includes:
(i) The State Auditor or his designees;
(ii) The State Auditor and his designee or designees.
SECTION 24. Section 13-7-7, Mississippi Code of 1972, is amended as follows:
13-7-7. (1) The
jurisdiction of a state grand jury impaneled under this chapter extends
throughout the state. The subject matter jurisdiction of a state grand jury * * * is limited to offenses involving
any and all conduct made unlawful by the Mississippi Uniform Controlled
Substances Law or any other provision of law involving narcotics, dangerous
drugs or controlled substances, or any crime arising out of or in connection
with a crime involving narcotics, dangerous drugs or controlled substances, and
crimes involving any attempt, aiding, abetting, solicitation * * *, conspiracy to commit any of the
aforementioned crimes if the crimes occur within more than one (1) circuit
court district or have transpired or are transpiring or have significance in
more than one (1) circuit court district of this state; or any crimes under
which the Mississippi Office of the State Auditor and Inspector General has the
authority to prosecute under the provisions of the Mississippi Public
Corruption Act enumerated in this act which arise out of a breach of public trust and/or abuse of position by
state, county, municipal or public entity officials and their private sector
accomplices, or Sections 50 and 175 of the Mississippi Constitution of 1890.
(2) Whenever the Attorney
General or the State Inspector General, acting in their individual capacity,
consider it necessary, and normal
investigative or prosecutorial procedures are not adequate, the Attorney
General or the State Inspector General may petition in writing to the
senior circuit court judge of any circuit court district in this state for an
order impaneling a state grand jury. For the purposes of this chapter, such
judge shall be referred to as the impaneling judge. The petition must allege
the following:
(a) The type of offenses to be inquired into;
(b) That the state grand jury has jurisdiction to consider such matters;
(c) That the offenses to be inquired into have occurred within more than one (1) circuit court district or have transpired or are transpiring or have significance in more than one (1) circuit court district of this state;
(d) That the Attorney General has conferred with the Commissioner of Public Safety and the Director of the Mississippi Bureau of Narcotics and that each of such officials join in the petition, or in cases of public corruption, the State Inspector General has conferred with the Commissioner of Public Safety and that each of such officials join in the petition; and
(e) That the Attorney General or the State Inspector General has conferred with the appropriate district attorney for each jurisdiction in which the crime or crimes are alleged to have occurred.
(3) The impaneling judge, after due consideration of the petition, may order the impanelment of a state grand jury in accordance with the petition for a term of twelve (12) calendar months. Upon petition by the Attorney General or the State Inspector General, the impaneling judge, by order, may extend the term of that state grand jury for a period of six (6) months, but the term of that state grand jury, including any extension thereof, shall not exceed two (2) years.
(4) The impaneling judge shall preside over the state grand jury until its discharge.
(5) The impaneling judge may discharge a state grand jury prior to the end of its original term or any extensions thereof, upon a determination that its business has been completed, or upon the request of the Attorney General or the State Inspector General.
(6) If, at any time within the original term of any state grand jury or any extension thereof, the impaneling judge determines that the state grand jury is not conducting investigative activity within its jurisdiction or proper investigative activity, the impaneling judge may limit the investigations so that the investigation conforms with the jurisdiction of the state grand jury and existing law or he may discharge the state grand jury. An order issued pursuant to this subsection or under subsection (5) of this section shall not become effective less than ten (10) days after the date on which it is issued and actual notice given to the Attorney General or the State Inspector General, whichever having cause to file petition for impanelment, and the foreman of the state grand jury, and may be appealed by the Attorney General or the State Inspector General to the Supreme Court. If an appeal from the order is made, the state grand jury, except as otherwise ordered by the Supreme Court, shall continue to exercise its powers pending disposition of the appeal.
SECTION 25. Section 13-7-11, Mississippi Code of 1972, is amended as follows:
13-7-11. (1) After a judge impanels a state grand jury upon the petition of the Attorney General, the Attorney General or his designee shall attend sessions of a state grand jury and shall serve as its legal advisor. The Attorney General or his designee shall examine witnesses, present evidence, and draft indictments and reports upon the direction of a state grand jury.
(2) After a judge impanels a state grand jury upon the petition of the State Inspector General, the State Inspector General or his designee shall attend sessions of a state grand jury and shall serve as a witness for the state, and if outside counsel is retained to aid in such prosecution, such counsel shall serve as its legal advisor. If retained, the outside counsel shall examine witnesses, present evidence and draft indictments and reports upon the direction of a state grand jury.
SECTION 26. Section 13-7-15, Mississippi Code of 1972, is amended as follows:
13-7-15. After the impaneling judge orders a term for the state grand jury on petition of the Attorney General or State Inspector General, the impaneling judge shall order that the circuit clerk for each county shall proceed to draw at random from the jury box as provided by Section 13-5-26, the name of one (1) voter of such county for each two thousand (2,000) voters or fraction thereof registered in such county and shall place these names on a list. The circuit clerk shall not disqualify or excuse any individual whose name is drawn. When the list is compiled, the clerk of the circuit court for each county shall forward the list to the clerk of the state grand jury. Upon receipt of all the lists from the clerks of the circuit courts, the clerk of the state grand jury shall place all the names so received upon a list which shall be known as the master list.
The impaneling judge shall order the clerk of the state grand jury to produce the master list and shall direct the random drawing of the names of one hundred (100) persons from the master list. The names drawn shall be given to the clerk of the state grand jury who shall cause each person drawn for service to be served with a summons either personally by the sheriff of the county where the juror resides or by mail, addressed to the juror at his usual residence, business or post office address, requiring him to report for state grand jury service at a specified time and place as designated by the impaneling judge. From the one hundred (100) persons summoned, a state grand jury shall be drawn for that term consisting of twenty (20) persons. State grand jurors must be drawn in the same manner as jurors are drawn for service on the county grand jury.
All qualified persons shall be liable to serve as state grand jurors, unless excused by the court for one (1) of the following causes:
(a) When the juror is ill, or when on account of serious illness in the juror's family, the presence of the juror is required at home;
(b) When the juror's attendance would cause a serious financial loss to the juror or to the juror's business; or
(c) When the juror is under an emergency, fairly equivalent to those mentioned in the foregoing paragraphs (a) and (b).
An excuse of illness under paragraph (a) may be made to the state grand jury clerk outside of open court by providing the clerk with either a certificate of a licensed physician or an affidavit of the juror, stating that the juror is ill or that there is a serious illness in the juror's family. The test of an excuse under paragraph (b) shall be whether, if the juror were incapacitated by illness or otherwise for a week, some other persons would be available or could reasonably be procured to carry on the business for the week, and the test of an excuse under paragraph (c) shall be such as to be the fair equivalent, under the circumstances of that prescribed under paragraph (b). In cases under paragraphs (b) and (c) the excuse must be made by the juror, in open court, under oath.
It shall be unlawful for any employer or other person to persuade or attempt to persuade any juror to avoid jury service, or to intimidate or to threaten any juror in that respect. So to do shall be deemed an interference with the administration of justice and a contempt of court and punishable as such.
Every citizen over sixty-five (65) years of age shall be exempt from service if he claims the privilege. No qualified juror shall be excluded because of such reason, but the same shall be a personal privilege to be claimed by any person selected for state grand jury duty. Any citizen over sixty-five (65) years of age may claim this personal privilege outside of open court by providing the clerk of court with information that allows the clerk to determine the validity of the claim.
The state grand jurors shall be charged by the impaneling judge as to their authority and responsibility under the law and each juror shall be sworn pursuant to Section 13-5-45. Nothing in this section shall be construed as limiting the right of the Attorney General or his designee or the State Inspector General or his designee to request that a potential state grand juror be excused for cause. The jury selection process shall be conducted by the impaneling judge. Jurors of a state grand jury shall receive reimbursement for travel and mileage as provided for state employees by Section 25-3-41 and shall be paid per diem compensation in the amount provided by Section 25-3-69. All compensation and expenses for meals and lodging of state grand jurors shall be paid out of any available funds appropriated for that purpose.
SECTION 27. Section 13-7-21, Mississippi Code of 1972, is amended as follows:
13-7-21. The clerk of the state grand jury, upon request of the Attorney General or his designee, or upon the request of the State Inspector General or his designee, shall issue subpoenas, or subpoenas duces tecum to compel individuals, documents or other materials to be brought from anywhere in the state or another state to a state grand jury. In addition, a state grand jury may proceed in the same manner as is provided for by law in relation to the issuance of subpoenas and subpoenas duces tecum; however, the provisions of such law shall not be considered a limitation upon this section, but shall be supplemental thereto. The subpoenas and subpoenas duces tecum may be for investigative purposes and for the retention of documents or other materials so subpoenaed for proper criminal proceedings. Any investigator employed by the Attorney General, the State Inspector General or any law enforcement officer with appropriate jurisdiction is empowered to serve such subpoenas and subpoenas duces tecum and receive such documents and other materials for return to a state grand jury. Any person violating a subpoena or subpoena duces tecum issued pursuant to this chapter, or who fails to fully answer all questions put to him before proceedings of the state grand jury whenever the response thereto is not privileged or otherwise protected by law, including the granting of immunity as authorized by this chapter, or any other law, may be punished by the impaneling judge for contempt provided the response is not privileged or otherwise protected by law. The Attorney General or his designee, or the State Inspector General or his designee may petition the impaneling judge to compel compliance by the person alleged to have committed the violation or who has failed to answer. If the impaneling judge considers compliance is warranted, he may order compliance and may punish the individual for contempt, as provided in Section 9-1-17, where the compliance does not occur. The clerk of the state grand jury may also issue subpoenas and subpoenas duces tecum to compel individuals, documents or other materials to be brought from anywhere in the state to the trial of any indictment returned by a state grand jury or the trial of any civil forfeiture action arising out of an investigation conducted by a state grand jury.
SECTION 28. Section 13-7-25, Mississippi Code of 1972, is amended as follows:
13-7-25. A court reporter shall record either stenographically or by use of an electronic recording device, all state grand jury proceedings except when the state grand jury is deliberating or voting. Subject to the limitations of Section 13-7-29 and any rule of court, a defendant has the right to review and to reproduce the stenographically or electronically recorded materials. Transcripts of the recorded testimony or proceedings must be made when requested by the Attorney General or his designee or by the State Inspector General or his designee. An unintentional failure of any recording to reproduce all or any portion of the testimony or proceeding shall not affect the validity of the prosecution. The recording or reporter's notes or any transcript prepared therefrom and all books, papers, records and correspondence produced before the state grand jury shall remain in the custody and control of the Attorney General or his designee or of the State Inspector General or his designee unless otherwise ordered by the court in a particular case.
SECTION 29. Section 13-7-29, Mississippi Code of 1972, is amended as follows:
13-7-29. (1) State grand jury proceedings are secret, and a state grand juror shall not disclose the nature or substance of the deliberations or vote of the state grand jury. The only persons who may be present in the state grand jury room when a state grand jury is in session, except for deliberations and voting, are the state grand jurors, the Attorney General or his designees, the State Inspector General or his designees, an interpreter if necessary and the witness testifying. A state grand juror, the Attorney General or his designees, the State Inspector General or his designees, any interpreter used and any person to whom disclosure is made pursuant to subsection (2)(b) of this section may not disclose the testimony of a witness examined before a state grand jury or other evidence received by it except when directed by a court for the purpose of:
(a) Ascertaining whether it is consistent with the testimony given by the witness before the court in any subsequent criminal proceedings;
(b) Determining whether the witness is guilty of perjury;
(c) Assisting local, state or federal law enforcement or investigating agencies, including another grand jury, in investigating crimes under their investigative jurisdiction;
(d) Providing the defendant the materials to which he is entitled pursuant to Section 13-7-25; or
(e) Complying with constitutional, statutory or other legal requirements or to further justice.
If the court orders disclosure of matters occurring before a state grand jury, the disclosure shall be made in that manner, at that time, and under those conditions as the court directs.
(2) In addition, disclosure of testimony of a witness examined before a state grand jury or other evidence received by it may be made without being directed by a court to:
(a) The Attorney General or his designees, or the State Inspector General or his designees for use in the performance of their duties; or
(b) Those governmental personnel, including personnel of the state or its political subdivisions, as are considered necessary by the Attorney General or his designee or the State Inspector General or his designee to assist in the performance of their duties to enforce the criminal laws of the state; however, any person to whom matters are disclosed under this paragraph (b) shall not utilize the state grand jury material for purposes other than assisting the Attorney General or his designee or the State Inspector General or his designee in the performance of their duties to enforce the criminal laws of this state. The Attorney General or his designees or the State Inspector General or his designees shall promptly provide the impaneling judge the names of the persons to whom the disclosure has been made and shall certify that he has advised these persons of their obligations of secrecy under this section.
(3) Nothing in this section affects the attorney-client relationship. A client has the right to communicate to his attorney any testimony given by the client to a state grand jury, any matters involving the client discussed in the client's presence before a state grand jury and evidence involving the client received by a proffer to a state grand jury in the client's presence.
(4) Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, shall be punished by a fine not exceeding Five Thousand Dollars ($5,000.00), or by a term of imprisonment not exceeding one (1) year, or by both such fine and imprisonment.
(5) State grand jurors, the Attorney General and his designee, the State Inspector General and his designee, any interpreter used and the clerk of the state grand jury shall be sworn to secrecy and also may be punished for criminal contempt for violations of this section.
SECTION 30. Section 13-7-41, Mississippi Code of 1972, is amended as follows:
13-7-41. The Attorney General and the State Inspector General shall make available suitable space for state grand juries to meet. The Mississippi Department of Public Safety, the Mississippi Bureau of Investigation and the Mississippi Bureau of Narcotics may provide such services as required by the Attorney General, the State Inspector General and the state grand juries.
SECTION 31. Section 41-29-507, Mississippi Code of 1972, is amended as follows:
41-29-507. (1) No person,
agency of the state or political subdivision of the state, other than the
Bureau of Narcotics and the State Inspector General, * * * shall be authorized by this article
to own, possess, install, operate or monitor an electronic, mechanical or other
device. The Bureau of Narcotics and the State Inspector General may be
assisted by an investigative or law enforcement officer in the operation and
monitoring of an interception of wire, oral or other communications, provided
that an agent of the Bureau of Narcotics is present at all times during
investigations relating to violations of the Mississippi Uniform Controlled
Substances Law, or an agent of the State Inspector General is present at all
times during investigations relating to violations of the Mississippi Public
Corruption Act.
(2) The appropriate
director of each agency authorized to possess devices described in this
article shall designate, in writing, the agents of the Bureau of Narcotics,
and the State Inspector General who are responsible for the possession,
installation, operation and monitoring of electronic, mechanical or other
devices * * *.
SECTION 32. Section 41-29-509, Mississippi Code of 1972, is amended as follows:
41-29-509. Prior to
submitting a request for an order authorizing interception of wire, oral or
other communications to a prosecutor, the appropriate director of the
agency authorized to possess devices described in this article shall
receive a written affidavit from one or more agents of the Bureau of Narcotics or
one or more agents of the State Inspector General setting forth the
information required by Section 41-29-513(1) and this act. * * * All information
required shall be submitted by the appropriate director of the agency
authorized to possess devices described in this article by Section 41-29-513(1)
to the prosecutor. Upon receipt of the request * * * the prosecutor shall be
authorized to submit an application to a court of competent jurisdiction requesting
the court to issue an order authorizing interception of wire, oral or other
communications as provided in Section 41-29-515.
SECTION 33. Section 41-29-513, Mississippi Code of 1972, is amended as follows:
41-29-513. (1) To be
valid, an application for an order authorizing the interception of a wire, oral
or other communication submitted by the Attorney General or the State
Inspector General * * *
shall be made in writing under oath to a judge of competent jurisdiction
in the circuit court district of the location where the interception of wire,
oral or other communications is sought, or a circuit court district contiguous
to such circuit court district, and must state the applicant's authority to
make the application. An applicant must include the following information in
the application:
(a) A statement that the application has been requested by the director and the identity of the prosecutor making the application;
(b) A full and complete statement of the facts and circumstances relied on by the applicant to justify his belief that an order should be issued including:
(i) Details about the particular offense that has been, is being, or is about to be committed;
(ii) A particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted;
(iii) A particular description of the type of communication sought to be intercepted; and
(iv) The identity of the person, if known, committing the offense and whose communications are to be intercepted;
(c) A full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed or to be too dangerous if tried;
(d) A statement of the period of time for which the interception is required to be maintained and, if the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication is first obtained, a particular description of the facts establishing probable cause to believe that additional communications of the same type will occur after the described type of communication is obtained;
(e) A statement whether a covert entry will be necessary to properly and safely install the wiretapping or electronic surveillance or eavesdropping equipment and, if a covert entry is requested, a statement as to why such an entry is necessary and proper under the facts of the particular investigation, including a full and complete statement as to whether other investigative techniques have been tried and have failed or why they reasonably appear to be unlikely to succeed or to be too dangerous if tried or are not feasible under the circumstances or exigencies of time;
(f) A full and complete statement of the facts concerning all applications known to the prosecutor making the application that have been previously made to a judge for authorization to intercept wire, oral or other communications involving any of the persons, facilities or places specified in the application and of the action taken by the judge on each application; and
(g) If the application is for the extension of an order, a statement setting forth the results already obtained from the interception or a reasonable explanation of the failure to obtain results.
(2) The judge may, in an ex parte in camera hearing, require additional testimony or documentary evidence in support of the application, and such testimony or documentary evidence shall be preserved as part of the application.
SECTION 34. Section 7-7-73, Mississippi Code of 1972, which requires the State Auditor to notify the Governor and the proper district attorney of any reasonable belief that a public officer or employee has embezzled any public funds, requires his attendance at trial as the state's witness, is repealed.
SECTION 35. This act shall take effect and be in force from and after July 1, 2016.