SB1531 - 502R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 12-117, Arizona Revised Statutes, is amended to read:

START_STATUTE12-117. Public defender training fund; appropriation

A. The public defender training fund is established consisting of monies allocated to the fund pursuant to section 12‑116. The supreme court shall administer the fund.

B. Each month the supreme court shall deposit in the fund the monies collected for the fund. All monies deposited in the fund are continuously appropriated to the supreme court for distribution to each county public defender and the state capital postconviction public defender office as provided in subsection C of this section.

C. The allocation of monies collected shall be made to each county public defender office and the state capital postconviction public defender office in proportion to the number of felony cases assigned to that office in the last fiscal year.

D. Monies received shall be used exclusively for the purpose of public defender training. Each public defender office receiving training fund monies shall submit to the supreme court an annual report of all financial receipts and expenditures from the training fund. END_STATUTE

Sec. 2. Section 13-4041, Arizona Revised Statutes, is amended to read:

START_STATUTE13-4041. Fee of counsel assigned in criminal proceeding or insanity hearing on appeal or in postconviction relief proceedings; reimbursement

A. Except pursuant to subsection G of this section, if counsel is appointed by the court to represent the defendant in either a criminal proceeding or insanity hearing on appeal, the county in which the court from which the appeal is taken presides shall pay counsel, except that in those appeals where the defendant is represented by a public defender or other publicly funded office, compensation shall not be set or paid. Compensation for services rendered on appeal shall be in an amount as the supreme court in its discretion deems reasonable, considering the services performed.

B. After the supreme court has affirmed a defendant's conviction and sentence in a capital case, the supreme court, or, if authorized by the supreme court, the presiding judge of the county from which the case originated shall appoint counsel to represent the capital defendant in the state postconviction relief proceeding. The court shall appoint counsel from the state capital postconviction public defender office unless a conflict exists or the court makes a finding that the office cannot represent the defendant.

C. Notwithstanding subsection B of this section, The supreme court shall establish and maintain a list of persons who are qualified to represent capital defendants in those cases in which the court does not appoint counsel from the state capital postconviction public defender office POSTCONVICTION PROCEEDINGS. The supreme court may establish by rule more stringent standards of competency for the appointment of postconviction counsel in capital cases than are provided by this subsection. The supreme court may refuse to certify an attorney on the list who meets the qualifications established under this subsection or may remove an attorney from the list who meets the qualifications established under this subsection if the supreme court determines that the attorney is incapable or unable to adequately represent a capital defendant. The court shall appoint counsel from the list. Counsel who are appointed from the list shall meet the following qualifications:

1. Be a member in good standing of the state bar of Arizona for at least five years immediately preceding the appointment.

2. Have practiced in the area of state criminal appeals or postconviction proceedings for at least three years immediately preceding the appointment.

3. Not previously have represented the capital defendant in the case either in the trial court or in the direct appeal, unless the defendant and counsel expressly request continued representation and waive all potential issues that are foreclosed by continued representation.

D. Before filing a petition, the capital defendant may personally appear before the trial court and waive counsel. If the trial court finds that the waiver is knowing and voluntary, appointed counsel may withdraw. The time limits in which to file a petition shall not be extended due solely to the change from appointed counsel to self‑representation.

E. If at any time the trial court determines that the capital defendant is not indigent, appointed counsel shall no longer be compensated by public monies and may withdraw.

F. Unless counsel is employed by a publicly funded office, counsel appointed to represent a capital defendant in state postconviction relief proceedings shall be paid an hourly rate of not to exceed one hundred dollars per hour for up to two hundred hours of work, whether or not a petition is filed. Monies shall not be paid to court appointed counsel unless either:

1. A petition is timely filed.

2. If a petition is not filed, a notice is timely filed stating that counsel has reviewed the record and found no meritorious claim.

G. On a showing of good cause, the trial court shall compensate appointed counsel from county funds in addition to the amount of compensation prescribed by subsection F of this section by paying an hourly rate in an amount that does not exceed one hundred dollars per hour. The attorney may establish good cause for additional fees by demonstrating that the attorney spent over two hundred hours representing the defendant in the proceedings. The court shall review and approve additional reasonable fees and costs. If the attorney believes that the court has set an unreasonably low hourly rate or if the court finds that the hours the attorney spent over the two hundred hour threshold are unreasonable, the attorney may file a special action with the Arizona supreme court. If counsel is appointed in successive postconviction relief proceedings, compensation shall be paid pursuant to section 13‑4013, subsection A.

H. The county shall request reimbursement for fees it incurs pursuant to subsections F, G and I of this section arising out of the appointment of counsel to represent an indigent capital defendant in a state postconviction relief proceeding. The state shall pay fifty per cent of the fees incurred by the county out of monies appropriated to the supreme court for these purposes. The supreme court shall approve county requests for reimbursement after certification that the amount requested is owed.

I. The trial court may authorize additional monies to pay for investigative and expert services that are reasonably necessary to adequately litigate those claims that are not precluded by section 13‑4232. END_STATUTE

Sec. 3. Section 31-284, Arizona Revised Statutes, is amended to read:

START_STATUTE31-284. Transition program fund

The transition program fund is established consisting of the monies collected pursuant to section 31‑254, subsection D, paragraph 3 and subsection E, paragraph 3 and section 31-285, subsection C. The department shall administer the fund to pay for any costs related to the administration of the transition program and for transition program services. Monies in the fund are subject to legislative appropriation and are exempt from the provisions of section 35‑190 relating to lapsing of appropriations. END_STATUTE

Sec. 4. Section 31-285, Arizona Revised Statutes, is amended to read:

START_STATUTE31-285. Transition program release; report

A. An inmate who enters a transition program pursuant to this article shall be released from confinement three months earlier than the inmate's earliest release date based on the inmate's risk and need and rules adopted pursuant to section 31‑281. An inmate who the director determines has participated in the program but who is not low risk shall not be released from confinement earlier than the inmate's earliest release date.

B. On or before September 30 of each year, the department shall prepare a report that details the cost reductions to the department that are directed to the transition program pursuant to this article and the number of participants who did not receive an early release under the transition program. The reduction rate shall equal at least seventeen dollars per inmate per day. The department shall submit a copy of its report to the governor, the president of the senate and the speaker of the house of representatives and shall provide a copy of this report to the director of the joint legislative budget committee and the secretary of state.

C. The state treasurer shall deposit any cost reductions that are identified pursuant to subsection B of this section in the transition services program fund established by section 31‑286 31-284 for the purpose of providing transitional services. END_STATUTE

Sec. 5. Repeal

Section 31-286, Arizona Revised Statutes, is repealed.

Sec. 6. Section 41-191.09, Arizona Revised Statutes, is amended to read:

START_STATUTE41-191.09. Attorney general legal services cost allocation fund; contributions; exemptions

A. The attorney general legal services cost allocation fund is established for the purpose of reimbursing the department of law for general agency counsel. Monies in the fund are subject to legislative appropriation. The attorney general shall administer the fund.

B. All state agency appropriated and nonappropriated funds, excluding federal monies, shall contribute a pro rata share of general agency counsel services provided by the department of law. The pro rata share is payable by payroll fund source, and the resultant amount shall be deposited in the attorney general legal services cost allocation fund. The pro rata share for each fund shall be 0.675 per cent of the total payroll. For the purposes of this subsection, "total payroll" includes federal monies, state general fund monies, special revenue funds, intergovernmental revenue monies, trust funds and other payroll fund sources but does not include federal monies.

C. A claim for the pro rata share percentage payment shall be submitted according to the fund source, with the accompanying payroll, to the department of administration for deposit in the attorney general legal services cost allocation fund.

D. The following agencies are exempt from this section:

1. The department of water resources.

2. The residential utility consumer office.

3. The industrial commission.

4. The universities and the Arizona board of regents.

5. The auditor general.

6. The corporation commission.

7. The office of the governor.

8. The department of law.

9. The house of representatives.

10. The senate.

11. The joint legislative budget committee.

12. The Arizona state library, archives and public records.

13. The legislative council.

14. The department of administration risk management fund.

15. The department of transportation.

16. The Arizona game and fish department.

17. The department of economic security.

18. The Arizona health care cost containment system.

19. The superior court.

20. The court of appeals.

21. The supreme court.

22. The Arizona department of agriculture and councils that receive administrative and budgetary services from the Arizona department of agriculture.

23. All self‑supporting regulatory agencies as determined pursuant to section 35‑143.01.

24. The Arizona commerce authority.

25. The state capital postconviction public defender office.

E. Monies in the attorney general legal services cost allocation fund are exempt from lapsing to the state general fund at the end of each fiscal year. END_STATUTE

Sec. 7. Section 41-1609, Arizona Revised Statutes, is amended to read:

START_STATUTE41-1609. Agreements with federal or private agencies and institutions; contract review; emergency contracts

A. The department may enter into agreements with the federal government, other states or agencies of the federal government or other states for such compensation upon which they agree to accept or deliver adult offenders or to administer correctional programs. Notwithstanding the provisions of section 35‑193, any funds received by the department under the agreements shall be kept in a separate revolving fund for current usage and shall not revert to the state general fund if unexpended at the close of a fiscal year.

B. The department may contract with any private or public institution that is located inside or outside this state for facilities or the operation of facilities that are dedicated to the confinement of persons who are committed to the department. Notwithstanding chapter 4, article 7 of this title and article 4 of this chapter, the contract may include a purchase option and if the contract has a per diem provision the contract may include a provision that allows a portion of the per diem to be applied to reduce the purchase price.

C. Except for an emergency contract entered into pursuant to subsection E of this section, the department shall not enter into a contract with any private or public institution pursuant to subsection B of this section to increase the total number of inmates housed in a private or public institution unless the department has specific authorization for the increase by law.

C. D. The department shall submit all contracts entered into pursuant to subsection B of this section to the attorney general to determine if the contract is within the authority granted under the laws of this state and in proper form. All contracts involving the detention or incarceration of adult offenders shall conform to the requirements of section 41‑1609.01.

D. E. Notwithstanding subsection C D of this section, the department may enter into emergency contracts pursuant to section 41‑2537 with private or public institutions for facilities or the operation of facilities that are dedicated to the confinement of persons who are committed to the department.

E. F. The director may declare an emergency for acts of God, natural catastrophes, prison riots and overcrowding. In an emergency, the director shall:

1. Confine persons who are committed to the department in either of the following:

(a) An existing public institution.

(b) A private institution that is described in subsection B of this section.

2. Up to twenty‑four hours before declaring the emergency, notify the governor and the attorney general of the emergency and the need to relocate persons who are committed to the department to another existing public or private facility established pursuant to sections 41‑1609.01 and 41‑1609.02.

3. Within thirty days after declaring the emergency, determine the length of the emergency confinement. If the director determines that the emergency confinement will exceed six months in duration, the emergency contract shall comply with sections 41‑1609.01 and 41‑1609.02.

F. G. Notwithstanding subsection E F, paragraph 2 of this section, if the director declares that an emergency exists due to the overcrowding of a public or private correctional facility, the director shall discuss with the governor, the attorney general and the majority and minority leadership in the senate and the house of representatives relocating the inmates from the overcrowded facility to another facility before relocating the inmates.

G. H. An emergency contract shall not exceed one year in duration.END_STATUTE

Sec. 8. Section 41-1609.01, Arizona Revised Statutes, is amended to read:

START_STATUTE41-1609.01. Adult incarceration contracts; criteria

A. On publication, any request for proposals shall be provided to the joint legislative budget committee for its review.

B. To be considered for an award of a contract, the proposer must demonstrate that it has:

1. The qualifications, operations and management experience and experienced personnel necessary to carry out the terms of the contract.

2. The ability to comply with applicable correctional standards and any specific court order, if required.

3. A demonstrated history of successful operation and management of other secure facilities.

C. The proposer of a contract for correctional services must agree that this state may cancel the contract at any time after the first year of operation, without penalty to this state, on giving ninety days' written notice.

D. A contract may provide for annual contract price or cost adjustments, except that any adjustments may be made only once each year effective on the anniversary of the effective date of the contract. If any adjustment is made pursuant to the terms of the contract, it shall be applied to the total payments made to the contractor for the previous contract year and shall not exceed the per cent of change in the average consumer price index as published by the United States department of labor, bureau of labor statistics between that figure for the latest calendar year and the next previous calendar year.

E. Any price or cost adjustments to a contract different than those authorized in subsection D of this section may be made only if the legislature specifically authorizes the adjustments and appropriates monies for that purpose, if required.

F. An award of a contract shall not be made unless an acceptable proposal is received pursuant to any request for proposals. For the purposes of this subsection, "acceptable proposal" means a proposal which that substantially meets all of the requirements or conditions set forth in this section and which that meets all of the requirements in the request for proposals.

G. A proposal shall not be accepted unless the proposal offers cost savings to this state. Cost savings shall be determined based upon the standard cost comparison model for privatization established by the director.

H. A proposal shall not be accepted unless the proposal offers a level and quality of services that are at least functionally equal to those that would be provided by this state.

I. Notwithstanding section 41‑2546, a contract to provide correctional services as described in this section may be for an initial period of not more than ten years.

J. The initial contract may include an option to renew for two subsequent renewal periods of not more than five years each.

K. The performance of the contractor shall be compared to the performance of this state in operating similar facilities, as provided in this section. The department shall conduct a biennial comparison of the services provided by the vendor for the purpose of comparing private versus public provision of services. The comparison of services shall be based on professional correctional standards specified by the director and incorporated into the contract and shall be used for the purpose of determining if the contractor is providing at least the same quality of services as this state at a lower cost or if the contractor is providing services superior in quality to those provided by this state at essentially the same cost. In conducting the comparison of services the director shall consider:

1. Security.

2. Inmate management and control.

3. Inmate programs and services.

4. Facility safety and sanitation.

5. Administration.

6. Food service.

7. Personnel practices and training.

8. Inmate health services.

9. Inmate discipline.

10. Other matters relating to services as determined by the director.

L. The director of the state department of corrections shall conduct a cost comparison of executed privatization contracts once every five years for each contract.

M. The director of the state department of corrections shall provide the most recent service comparison and cost comparison for contractors who exclusively contract with the department to the joint legislative budget committee for its review.

N. K. A contract for correctional services described in this section shall not be entered into unless the following requirements are met:

1. The contractor provides audited financial statements for the previous five years, or for each of the years the contractor has been in operation, if fewer than five years, and provides other financial information as requested.

2. The contractor provides an adequate plan of insurance, specifically including coverage or insurance for civil rights claims and liabilities as approved by the risk management division of the department of administration.

3. The contractor agrees to be liable for the costs of any emergency, public safety or security services provided to the contractor by the state or any political subdivision of the state and to reimburse the state or any political subdivision of the state for the cost of any such services.

O. L. The sovereign immunity of this state does not apply to the contractor. Neither the contractor nor the insurer of the contractor may plead the defense of sovereign immunity in any action arising out of the performance of the contract.

P. M. A contract for correctional services shall not authorize, allow or imply a delegation of authority or responsibility to a prison contractor for any of the following:

1. Developing and implementing procedures for calculating inmate release dates.

2. Developing and implementing procedures for calculating and awarding sentence credits.

3. Approving the type of work inmates may perform and the wages or sentence credits which that may be given to inmates engaging in the work.

4. Granting, denying or revoking sentence credits, placing an inmate under less restrictive custody or more restrictive custody or taking any disciplinary actions.END_STATUTE

Sec. 9. Section 41-1723, Arizona Revised Statutes, is amended to read:

START_STATUTE41-1723. Public safety equipment fund; distribution

A. The public safety equipment fund is established consisting of monies deposited in the fund pursuant to sections 5‑395.01, 5‑396, 5‑397, 12‑116.04, 28‑1381, 28‑1382, 28‑1383, 28‑8284, 28‑8286, 28‑8287 and 28‑8288. The department shall administer the fund.

B. Monies deposited in the fund pursuant to sections 5‑395.01, 5‑396, 5‑397, 28‑1381, 28‑1382, 28‑1383, 28‑8284, 28‑8286, 28‑8287 and 28‑8288 shall be distributed as follows:

1. The first one million two hundred thousand dollars received each fiscal year as a continuing appropriation to the department for vehicles, protective armor, electronic stun devices and other safety equipment. Monies appropriated pursuant to this paragraph are exempt from the provisions of section 35‑190 relating to lapsing of appropriations.

2. All other monies each fiscal year shall be deposited in the state general fund.

C. Monies deposited in the fund pursuant to section 12‑116.04 are subject to legislative appropriation and shall be used by the department for vehicles, protective armor, electronic stun devices and other safety equipment. END_STATUTE

Sec. 10. Repeal

Section 41-3016.30, Arizona Revised Statutes, is repealed.

Sec. 11. Repeal

Title 41, chapter 42, Arizona Revised Statutes, is repealed.

Sec. 12. Repeal

A. Section 5-396, Arizona Revised Statutes, as amended by Laws 2011, chapter 33, section 1, is repealed.

B. Section 13-701, Arizona Revised Statutes, as amended by Laws 2011, chapter 33, section 5, is repealed.

C. Section 28-1383, Arizona Revised Statutes, as amended by Laws 2011, chapter 33, section 7 and chapter 341, section 11, is repealed.

D. Section 28-8288, Arizona Revised Statutes, as amended by Laws 2011, chapter 33, section 8, is repealed.

E. Section 31-133, Arizona Revised Statutes, is repealed.

F. Section 31-201.01, Arizona Revised Statutes, as amended by Laws 2011, chapter 33, section 10, is repealed.

G. Section 41-1610.02, Arizona Revised Statutes, is repealed.

H. Laws 2011, chapter 33, sections 28, 29 and 32 are repealed.

Sec. 13. Repeal

Laws 2009, third special session, chapter 6, section 37 is repealed.

Sec. 14. State department of corrections; budget structure

Notwithstanding any other law, the state department of corrections shall report actual fiscal year 2011-2012, estimated fiscal year 2012-2013 and requested fiscal year 2013-2014 expenditures in the same structure and detail as the prior fiscal year when the department submits the fiscal year 2013-2014 budget request pursuant to section 35-113, Arizona Revised Statutes. The information submitted for each line item shall contain as much detail as submitted in previous years for prior line items.

Sec. 15. State department of corrections; use of funds; permission

Notwithstanding any other law, the state department of corrections is permitted to use monies from any of the following funds for department operating expenses in fiscal year 2012-2013:

1. The transition program fund established by section 31-284, Arizona Revised Statutes.

2. The transition services fund established by section 31-286, Arizona Revised Statutes.

3. The state department of corrections interagency service agreement fund.

Sec. 16. Board of executive clemency; employment compensation

Notwithstanding any other law, in fiscal year 2012-2013, the members of the board of executive clemency, excluding the chairman, shall be compensated on an hourly basis and shall not be eligible for paid leave or any benefits provided to state employees pursuant to section 38-651, Arizona Revised Statutes.

Sec. 17. Department of public safety; highway funds; limitation

Notwithstanding sections 28-6537 and 28-6993, Arizona Revised Statutes, the statutory caps and transfers of highway user revenue fund monies and state highway fund monies available to fund department of public safety highway patrol costs are suspended for fiscal year 2012-2013.

Sec. 18. Suspension of reporting requirements

Notwithstanding any other law, the reporting requirements contained in the following sections are suspended for fiscal year 2012-2013:

1. Section 8-358, subsection B, Arizona Revised Statutes, relating to the annual juvenile intensive probation report.

2. Section 12-299.03, subsection A, paragraph 8, Arizona Revised Statutes, relating to the evaluation of the community punishment program.

3. Section 12-2456, Arizona Revised Statutes, relating to a report of information regarding the emancipation of minors.

4. Section 13-901.02, subsection D, Arizona Revised Statutes, relating to the annual drug treatment and education fund report card.

5. Section 25-323.01, subsection B, Arizona Revised Statutes, relating to the annual child support committee report.

6. Section 25-323.02, subsection C, Arizona Revised Statutes, relating to the annual domestic relations committee report.

Sec. 19. Nonsupplanting; suspension

Notwithstanding any other law, in fiscal year 2012-2013 the provisions relating to supplanting of state monies contained in section 12-102.02, subsection E, section 12-102.03, subsection D, section 12-135, subsection D, section 12-135.01, subsection D, section 12-267, subsection D, section 12‑268, subsection D and section 12-299.01, subsection C, Arizona Revised Statutes, are suspended. The Arizona supreme court shall submit a report to the joint legislative budget committee identifying any decrease in county funding related to these suspended provisions, including the reasons for the decrease.

Sec. 20. Arizona supreme court; county reimbursement

Notwithstanding section 13-4041, subsection H and section 21-428, subsection B, Arizona Revised Statutes, the Arizona supreme court shall not reimburse the counties more than the amount appropriated for that purpose in the fiscal year 2012-2013 general appropriations act.

Sec. 21. Collection enforcement revolving fund; disposition of monies

Notwithstanding section 41-191.03, subsection E, Arizona Revised Statutes, any monies remaining in the collection enforcement revolving fund at the end of fiscal year 2012-2013 in excess of five hundred thousand dollars shall be distributed on a pro rata basis to the funds receiving monies pursuant to section 41-191.03, subsection D, Arizona Revised Statutes. Such distribution shall be based on the percentage that the collections deposited in each fund bear to the total amount deposited into the funds during fiscal year 2012-2013.

Sec. 22. Capital postconviction public defender office fund; transfer

From and after June 30, 2012, any monies remaining in the capital postconviction public defender office fund established by section 41-4303, Arizona Revised Statutes, shall be transferred to the state general fund.

Sec. 23. Photo enforcement fund; transfer

A. From and after June 30, 2012, any monies remaining in the photo enforcement fund established by section 41-1722, subsection B, Arizona Revised Statutes, shall be transferred to the state general fund.

B. From and after June 30, 2012, any monies collected from the state photo enforcement system established by section 41-1722, Arizona Revised Statutes, shall be deposited in the state general fund.

Sec. 24. Retroactivity

Section 12 of this act is effective retroactively to from and after June 30, 2012.