House Bill 1321

AN ACT TO AMEND SECTIONS 25-31-21 AND 99-3-28, MISSISSIPPI CODE OF 1972, TO PROVIDE A PROCEDURE FOR APPOINTMENT OF AN ATTORNEY WHEN THE DISTRICT ATTORNEY IS ABSENT OR UNABLE TO PERFORM THE DUTIES OF HIS OR HER OFFICE; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 25-31-21, Mississippi Code of 1972, is amended as follows:

25-31-21. If, at the time of impaneling the grand jury in any circuit court, the district attorney be absent or unable to perform his or her duties or, if after impaneling of the grand jury, the district attorney be absent or unable to perform his or her duties or be disqualified, the court shall forthwith appoint some attorney at law to act for the state in the place of the district attorney during his absence or inability or disqualification, and the person appointed shall have the power to discharge all the duties of the office during the absence or inability or disqualification of the district attorney, and shall receive a reasonable compensation for his services, to be allowed by the court and certified to the auditor, who shall issue his or her warrant therefor. Such allowance shall be deducted from the salary of the district attorney, and shall not exceed the amount of the salary of the district attorney for the number of days allotted by law for the term of the court at which such appointees shall act. If the term of office ends for the district attorney who is determined by the court to be absent or unable to perform his or her duties of the office, the court shall authorize the newly elected district attorney to perform all necessary duties of such office as provided by Sections 23-15-883 and 23-15-843, Mississippi Code of 1972.

(2) The court on its own motion, or an interested person in a cause or proceeding, civil or criminal, may file a petition alleging that the district attorney is sick, absent, or unable to fulfill his or her duties. The court shall consider the petition, any documents filed in response, and if necessary, grant a hearing to determine whether the district attorney is sick, absent, or otherwise unable to fulfill his or her duties. If the court finds that the district attorney is sick, absent, or otherwise unable to fulfill his or her duties, the court may appoint an attorney to prosecute or defend the cause or proceeding.

(3) (a) The court on its own motion, or an interested person in a cause or proceeding, civil or criminal, may file a petition alleging that the district attorney has an actual conflict of interest in the cause or proceeding. The court shall consider the petition, any documents filed in response, and if necessary, grant a hearing to determine whether the district attorney has an actual conflict of interest in the cause or proceeding. If the court finds that the petitioner has proven by sufficient facts and evidence that the district attorney has an actual conflict of interest in a specific case, the court may appoint an attorney to prosecute or defend the cause or proceeding.

(b) An actual conflict of interest is presumed in lieu of a filed petition in cases relating to the death of a person caused by a law enforcement officer while in the performance of official duties. In such cases, the court shall consider the petition, any documents filed in response, and if necessary, grant a hearing to determine whether the district attorney has an actual conflict of interest in the cause or proceeding.

(4) Any district attorney may file a petition to recuse himself or herself from a cause or proceeding for any other reason he or she deems appropriate and the court shall appoint a special prosecutor as provided in this act.

(5) Before any private attorney is appointed by the court for purposes of this act, the court shall contact the Office of Attorney General, Administrative Office of the Courts, or a local district attorney to determine the availability of an attorney employed by such agency. An attorney so appointed shall have the same power and authority in relation to the cause or proceeding as the district attorney would.

(6) An order granting authority to a special prosecutor must be construed strictly and narrowly by the court. The power and authority of a special prosecutor shall not be expanded without prior notice.

SECTION 2. Section 99-3-28, Mississippi Code of 1972, is amended as follows:

99-3-28. (1) (a) Except as provided in subsection (2) of this section, before an arrest warrant shall be issued against any teacher who is a licensed public school employee as defined in Section 37-9-1, a certified jail officer as defined in Section 45-4-9, a counselor at an adolescent opportunity program created under Section 43-27-201 et seq., or a sworn law enforcement officer within this state as defined in Section 45-6-3 for a criminal act, whether misdemeanor or felony, which is alleged to have occurred while the teacher, jail officer, counselor at an adolescent opportunity program or law enforcement officer was in the performance of official duties, a probable cause hearing shall be held before a circuit court judge. The purpose of the hearing shall be to determine if adequate probable cause exists for the issuance of a warrant. All parties testifying in these proceedings shall do so under oath. The accused shall have the right to enter an appearance at the hearing, represented by legal counsel at his own expense, to hear the accusations and evidence against him or her; he or she may present evidence or testify in his or her own behalf.

(b) The authority receiving any such charge or complaint against a teacher, jail officer, counselor at an adolescent offender program or law enforcement officer shall immediately present same to the county prosecuting attorney having jurisdiction who shall immediately present the charge or complaint to a circuit judge in the judicial district where the action arose for disposition pursuant to this section. In cases relating to the death of a person caused by a law enforcement officer while in performance of official duties, a special prosecutor, appointed by the court having jurisdiction, shall have the authority normally vested to the county prosecuting attorney in such dispositions.

(2) Nothing in this section shall prohibit the issuance of an arrest warrant by a circuit court judge upon presentation of probable cause, without the holding of a probable cause hearing, if adequate evidence is presented to satisfy the court that there is a significant risk that the accused will flee the court's jurisdiction or that the accused poses a threat to the safety or well-being of the public.

SECTION 3. This act shall take effect and be in force from and after July 1, 2018.