SB428 By Senator Albritton RFD Judiciary Rd 1 30-APR-15

SYNOPSIS: Under existing law, certain pension, annuity, or retirement allowance benefits under the Teachers' Retirement System and the Employees' Retirement System are exempt from state or municipal taxes, levy, sale, garnishment, attachment, or any other related process.

This bill would provide that restitution, fines, court costs, fees, or any other financial obligations in a felony criminal case ordered by a circuit or district court judge in this state are not subject to this exemption.

This bill would allow the court and certain licensing authorities to revoke or suspend certain licenses, such as driver's licenses, hunting licenses, fishing licenses, concealed carry licenses, and other occupational, regulatory, or professional licenses if a person is delinquent in any criminal case in making certain payments to the court or has an outstanding writ of arrest or alias warrant.

This bill would allow a district attorney, or his or her designee, to accept credit cards, charge cards, or debit cards for payment of restitution, fines, court costs, fees, or other court ordered financial obligations under certain conditions.

This bill would also require each county to have at least one amnesty period during the 2016 Fiscal Year for those individuals who have outstanding restitution, fines, court costs, fees, or other financial obligations ordered by the court in a criminal case or criminal cases for whom a writ or warrant was issued.

A BILL TO BE ENTITLED AN ACT

To amend Sections 16-25-23 and 36-27-28, Code of Alabama 1975, to provide that certain pension, annuity, or retirement allowance benefits under the Teachers' Retirement System and the Employees' Retirement System are subject to certain recovery action; allow the court and certain licensing authorities to revoke or suspend certain licenses; to provide for notice and hearing under certain conditions; to provide for restoration of the license; to allow a district attorney to accept credit cards, charge cards, or debit cards for the payment of certain court ordered financial obligations; to provide for an amnesty period for certain court ordered financial obligations during the 2016 Fiscal Year; and to amend Section 12-17-225.2, Code of Alabama 1975, to further provide for the notice requirements to the district attorney relating to certain court ordered financial obligations.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:Section 1. Sections 16-25-23 and 36-27-28, Code of Alabama 1975, are amended to read as follows:

§16-25-23.

"(a) The Except as provided in subsection (b), the right of a person to a pension; an annuity, or a retirement allowance; to the return of contributions; the pension, annuity or retirement allowance itself; any optional benefit or any other right accrued or accruing to any person under the provisions of this chapter; and the moneys monies in the various funds created by this chapter are hereby exempt from any state or municipal tax and exempt from levy and sale, garnishment, attachment or any other process whatsoever, and shall be unassignable except as in this chapter specifically otherwise provided.

"(b)(1) Restitution, fines, court costs, fees, or any other financial obligations in a criminal case ordered by a circuit or district court judge in this state are not subject to the exemption set out in subsection (a), provided all of the following are satisfied:

"a. The amount of the restitution ordered is in the amount of ten thousand dollars ($10,000) or greater.

"b. The person subject to the order is a retiree or beneficiary who is currently receiving benefits from the Teachers' Retirement System.

"c. The case has been assigned to the district attorney's restitution recovery division.

"(2) If the requirements of subdivision (1) are met, and upon motion filed by the district attorney, the circuit or district court judge may order that the Teachers' Retirement System pay to the circuit clerk of the court no more than 25 percent of the retiree's or beneficiary's gross monthly benefit less any deductions for child support or health insurance for any dependents, to be applied to the balance of the restitution, fines, court costs, fees, or other financial obligations ordered in the criminal case.

"(3) An order under subdivision (2) shall set out all of the following:

"a. The individual's name, date of birth, and Social Security number.

"b. The amount of restitution ordered is in the amount of ten thousand dollars ($10,000) or greater.

"c. The amounts of restitution, fines, court costs, fees, or any other financial obligations owed, detailed individually.

"d. The relevant case numbers.

"e. The county in which the case was brought.

"f. The circuit clerk's name and mailing address.

"g. That the restitution, fines, court costs, fees, or other financial obligations are payable as a result of a criminal disposition.

"h. The amount or the percentage of funds to be paid.

"(4) The circuit clerk must notify the court whenever the restitution, fines, court costs, fees, or other financial obligations are paid in full. Thereafter, the court shall issue an order to stop the diversion of the individual's funds. Any payment received by the circuit clerk in an amount over what was owed shall be paid back to the Teachers' Retirement System within 60 days with the specific identifying information as to the retiree or the beneficiary to whom it is owed.

§36-27-28.

"(a) The Except as provided in subsection (b), the right of a person to a pension, an annuity, a retirement allowance or to the return of contributions, the pension, annuity or retirement allowance itself and any optional benefit or any other right accrued or accruing to any person under the provisions of this article and the moneys in the various funds created by this chapter are hereby exempt from any state or municipal tax and exempt from levy and sale, garnishment, attachment or any other process whatsoever and shall be unassignable except as in this article specifically otherwise provided.

"(b)(1) Restitution, fines, court costs, fees, or any other financial obligations in a criminal case ordered by a circuit or district court judge in this state are not subject to the exemption set out in subsection (a), provided all of the following are satisfied:

"a. The amount of the restitution ordered is in the amount of ten thousand dollars ($10,000) or greater.

"b. The person subject to the order is a retiree or beneficiary who is currently receiving benefits from the Employees' Retirement System.

"c. The case has been assigned to the district attorney's restitution recovery division.

"(2) If the requirements of subdivision (1) are met, and upon motion filed by the district attorney, the circuit court judge may order that the Employees' Retirement System pay to the circuit clerk of the court no more than 25 percent of the retiree's or beneficiary's gross monthly benefit less any deductions for child support or health insurance for any dependents, to be applied to the balance of the restitution, fines, court costs, fees, or other financial obligations ordered in the criminal case.

"(3) An order under subdivision (2) shall set out all of the following:

"a. The individual's name, date of birth, and Social Security number.

"b. The amount of restitution ordered is in the amount of ten thousand dollars ($10,000) or greater.

"c. The amounts of restitution, fines, court costs, fees, or any other financial obligations owed, detailed individually.

"d. The relevant case numbers.

"e. The county in which the case was brought.

"f. The circuit clerk's name and mailing address.

"g. That the restitution, fines, court costs, fees, or other financial obligations are payable as a result of a criminal disposition.

"h. The amount or the percentage of funds to be paid.

"(4) The circuit clerk must notify the court whenever the restitution, fines, court costs, fees, or other financial obligations are paid in full. Thereafter, the court shall issue an order to stop the diversion of the individual's funds. Any payment received by the circuit clerk in an amount over what was owed shall be paid back to the Employees' Retirement System within 60 days with the specific identifying information as to the retiree or the beneficiary to whom it is owed."

Section 2. (a) For the purposes of this section, the following terms shall have the following meanings:

(1) COURT. A court of competent jurisdiction having the authority to issue and enforce court orders in a criminal case.

(2) DELINQUENT OR DELINQUENCY. The failure to make a court ordered payment on restitution, fines, court costs, fees, or any other financial obligations ordered by a court in a criminal case for a period of more than 90 days.

(3) LICENSE. Any license, certificate, registration, or authorization issued by a licensing authority which grants a person a right or privilege to engage in an occupational, professional, sporting, or recreational activity, or to operate a motor vehicle.

(4) LICENSING AUTHORITY. Any department, division, board, agency, or instrumentality of the state or its political subdivisions that issues a license.

(b) Upon a finding by the court that a defendant is delinquent in any criminal case or has an outstanding writ of arrest or alias warrant for a failure to appear in court in any criminal case, the court may revoke or suspend the defendant's driver's license, hunting license, fishing license, or concealed carry pistol permit. This action does not require a hearing, and may be done upon motion of the state or upon motion of the court.

(c)(1) In any criminal case in which a defendant is delinquent or has an outstanding writ of arrest or alias warrant for a failure to appear in court, the court may withhold, restrict use of, revoke, or suspend any license not listed in subsection (b) issued by a licensing authority upon motion of the state and after a hearing.

(2) A motion by the state may be served upon the defendant personally, by certified mail, or by mail to the last known address of the defendant or, if the case has not been disposed of, served upon the defendant's attorney. The motion shall state that the state is moving to withhold, restrict use of, revoke, or suspend the defendant's license or licenses based on delinquency or a writ of arrest or alias warrant being issued due to failure to appear in court. The license or licenses that are subject to this action pursuant to this section shall be set out in the motion.

(d) A hearing date shall be set within 60 days of the filing of the motion set out in subsection (c). At the hearing, upon the court being reasonably satisfied that the defendant is delinquent or that a writ of arrest or alias warrant was issued for a failure to appear in court, the court may withhold, restrict use of, revoke, or suspend any license or licenses issued by a licensing authority. The court may take action without the presence of the defendant if the state establishes that the motion was served upon the defendant personally, by certified mail, or by mail to the last known address of the defendant or, if the case has not been disposed of, served upon the defendant's attorney.

(e) For any license that is withheld, restricted, revoked, or suspended pursuant to subsection (b) or (c), the court shall send a notice to the licensing authority instructing it to withhold, restrict use of, revoke, or suspend the defendant's license. A determination of the court is independent of any proceeding of the licensing authority to withhold, restrict use of, suspend use of, revoke, renew, or issue a license. Any process currently in place by a court or circuit clerk's office to notify a licensing authority of a revocation or suspension of a license may continue to be used.

(f) A license may not be withheld, restricted, revoked, or suspended pursuant to this section if the defendant does any of the following:

(1) Pays the entire amount of the delinquency.

(2) Enters into a payment agreement or payment order with the court or the district attorney's office and complies with the order or agreement.

(3) Appears in court or to the jail to turn himself or herself in on the active writ of arrest or alias warrant.

(g) Upon receipt of an order from the court to withhold, restrict use of, revoke, or suspend a license, a licensing authority shall implement the withholding, restricted use, revocation, or suspension of the license by doing all of the following:

(1) Determining that it has issued a license to the defendant whose name appears on the order.

(2) Entering the withholding, restriction, revocation, or suspension on the appropriate records.

(3) If required by law, demanding surrender of the revoked or suspended license.

(h) An order issued by the court to withhold, restrict use of, revoke, or suspend a license shall be processed by the licensing authority without any additional review or hearing by the licensing authority. The licensing authority shall have no jurisdiction to modify, reword, reverse, vacate, or stay the decision of the court.

(i) Any order issued by the court to withhold, restrict use of, revoke, or suspend a license continues until the court notifies the licensing authority that the decision to withhold, restrict use of, revoke, or suspend has been stayed or is no longer in effect. While the court's order is in effect, the licensing authority may not issue, reissue, or renew the defendant's license.

(j) The licensing authority is exempt from any liability to the licensee for activities conducted in compliance with this section.

(k) After the issuance of any order to withhold, restrict the use of, revoke, or suspend a license, the court, on its own or at the request of the defendant, may send an order authorizing the licensing authority to reinstate the license if the defendant complies with the requirements of subsection (f). Upon receipt of the order, the licensing authority may issue a new license pursuant to the statutes or regulations governing the reissuance of a license by the licensing authority.

(l) Notwithstanding any other provision of law, the licensing authority may charge the defendant a fee to cover administrative costs incurred by the licensing authority in carrying out this section to be used exclusively by the licensing authority for the purpose of administering this section. In the event that a license is withheld, its use restricted, revoked, or suspended, any money paid by the defendant to the licensing authority for costs related to its issuance, reissuance, renewal, or maintenance may not be refunded to the defendant.

(m) The remedies set out in this section are in addition to, and shall not limit, any other remedies available to the state.

(n) Nothing in this section shall prohibit a court from suspending a driver's license pursuant to Alabama Rule of Criminal Procedure 26.11(i)(3).

Section 3. (a) A district attorney or his or her designee, which may include a third party contracting with the district attorney to assist in the collection of restitution, fines, court costs, fees, or other court ordered financial obligations, is specifically authorized to accept credit cards, charge cards, and debit cards for payment of restitution, fines, court costs, fees, or any other court ordered financial obligations for which the district attorney's restitution recovery division is collecting or attempting to collect. District attorneys or a district attorney's designee may enter into appropriate agreements with credit and debit card issuers or other appropriate parties as needed to facilitate the acceptance of credit and debit card payments.

(b)(1) A district attorney accepting payment by credit or debit card pursuant to an agreement with a credit card company or financial institution may impose a surcharge, service charge, or convenience fee upon the person making a payment by credit or debit card equal to, but not to exceed, the amount of any charge, surcharge, fee, or other monetary obligation imposed by the financial institution or credit card company, which may include costs for any equipment supplied by the financial institution or credit card company.

(2) A designee of a district attorney accepting or facilitating credit or debit card payments on behalf of a district attorney may impose a surcharge, service charge, or convenience fee upon the person making a payment by credit or debit card that may exceed the amount of any charge, surcharge, fee, or other monetary obligation imposed by the financial institution or credit card company, which may include costs for any equipment supplied by the financial institution or credit card company.

(3) A surcharge, service charge, or convenience fee shall be deemed voluntary by the party making payment and is not refundable.

(c) A person making any payment by credit or debit card to a district attorney, or a district attorney's designee, may not be relieved from liability for the underlying obligation in full or part, except to the extent that the district attorney realizes final payment of the underlying obligation in the amount paid by credit or debit card in cash or the equivalent. If the payment is not made by the credit or debit card issuer or other guarantor of payment in the credit or debit card transaction, the amount attempted to be paid on the underlying obligation shall survive and the district attorney shall retain all remedies for enforcement that would have applied if the credit or debit card transaction had not occurred. A contract may not modify the provisions of this subsection.

(d) Each district attorney may adopt rules and operating procedures concerning the acceptance of credit and debit card payments. District attorneys are not required to accept credit or debit card payments.

(e) A district attorney, a district attorney's designee, or any employee for either a district attorney or designee may not incur any personal liability for the final collection of any payments by debit or credit card, if the collection was in accordance with this section, or any applicable rules, policies, or procedures adopted by the district attorney.

(f) District attorneys are specifically authorized to forward any amounts collected, as required by law, to the circuit or district clerk by means of a check or other payment method allowed by law, notwithstanding whether those funds are paid to, or collected by, the district attorney's restitution recovery division or the district attorney's designee by means of a credit card or debit card as authorized by this section.

Section 4. (a) Each county must have at least one amnesty period during the 2016 Fiscal Year for those individuals who have outstanding restitution, fines, court costs, fees, or other financial obligations ordered by the court in a criminal case or criminal cases for whom a writ of arrest or alias warrant was issued due to failure to appear or failure to comply with a court order in regard to failure to pay.

(b) The presiding judge in each circuit shall set an amnesty period for each county during the same time for all courts in that county, including municipal courts. Each county may set its own amnesty period, which is not required to coincide with other counties. However, counties may coordinate with other counties to have that same amnesty period.

(c) The amnesty period must be at least one full business day, but may encompass multiple consecutive days or weeks. Individuals may appear before the court or the circuit, district, or municipal court clerk during the amnesty period in order to make payment, either full or partial, on the unpaid restitution, fines, court costs, fees, or other financial obligations ordered by the court.

(d) Upon appearing and making full or partial payment, the writ of arrest or alias warrant shall not be executed and shall be recalled. The court may set a new court date as required.

(e) The requirements of this section shall expire on the last day of the 2016 Fiscal Year unless renewed by the Legislature during the 2016 Legislative Session. Section 5. Section 12-17-225.2, Code of Alabama 1975, is amended to read as follows:

§12-17-225.2.

"The court or the clerk of the court shall notify the district attorney in writing when any bail bond forfeitures, court costs, fines, penalty payments, crime victims' restitution, or victims' compensation assessments or like payments in any civil or criminal proceeding ordered by the court to be paid to the state or to crime victims have not been paid or are in default and the default has not been vacated. Upon written notification to the district attorney, the restitution recovery division of the office of the district attorney may collect or enforce the collection of any funds that have not been paid or that are in default which, under the direction of the district attorney, are appropriate to be processed. In no event shall a court or court clerk notify the district attorney in less than 90 days from the date the payments are due to be paid in full or from the date of the last court ordered payment made, and in no event shall a court or court clerk notify the district attorney later than 270 days from the date that the court ordered payment is due to be paid in full or from the date that the last court ordered payment was made. Payments of amounts that do not meet the requirements of the court order or that are less than the monthly court ordered amount shall not extend the notification period. Such notification shall not be prevented or prohibited."

Section 6. The provisions of this act are severable. If any part of this act is declared invalid or unconstitutional, that declaration shall not affect the part which remains.

Section 7. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.

Court Costs

Courts

District Attorneys

Employees' Retirement System

Teachers' Retirement System

Licenses and Licensing

Clerks

Code Amended