An Act concerning courts; relating to collection of debts owed thereto; attorney general; amending K.S.A. 21-4603d and 60-2310 and K.S.A. 1995 Supp. 75-6202 and repealing the existing sections.
Be it enacted by the Legislature of the State of Kansas:
New Section 1. (a) The attorney general is authorized to enter into contracts in accordance with this section for collection services for debts owed to courts or restitution owed under an order of restitution.
(b) As used in this section:
(1) ``Beneficiary under an order of restitution'' means the victim or victims of a crime to whom a district court has ordered restitution be paid;
(2) ``contracting agent'' means a person, firm, agency or other entity who contracts hereunder to provide collection services;
(3) ``cost of collection'' means the fee specified in contracts hereunder to be paid to or retained by a contracting agent for collection services. ``Cost of collection'' also includes any filing fee required under K.S.A. 60- 4303 and amendments thereto or administrative costs prescribed by the attorney general pursuant to rules and regulations; and
(4) ``debts owed to courts'' means any assessment of court costs, fines, fees or other charges which a district court judgment has ordered to be paid to the court, and which remain unpaid in whole or in part, and includes any interest or penalties on such unpaid amounts as provided for in the judgment or by law. ``Debts owed to courts'' also includes the cost of collection when collection services of a contracting agent here- under are utilized.
(c) (1) Contracts authorized by this section may be entered into with state or federal agencies or political subdivisions of the state of Kansas, including contracts for participation in the collection program authorized by K.S.A. 75-6201 et seq. and amendments thereto. Such contracts also may be entered into with private firms or individuals selected by a pro- curement negotiation committee in accordance with K.S.A. 75-37,102 and amendments thereto, except that the attorney general shall designate a representative to serve as the chief administrative officer member of such committee and that the other two members of such committee shall be designated by the director of purchases and the judicial administrator.
(2) Prior to negotiating any contract for collection services, this pro- curement negotiation committee shall advertise for proposals, negotiate with firms and individuals submitting proposals and select among those submitting such proposals the party or parties to contract with for the purpose of collection services.
(3) The attorney general may adopt rules and regulations as deemed appropriate for the administration of this section, including procedures to be used in the negotiation and execution of contracts pursuant to this section and procedures to be followed by those who utilize collection services under such contracts.
(4) For purposes of this section, the agencies, firms or individuals with whom contracts are entered under this section shall be known as contracting agents. The attorney general shall publish a list of the con- tracting agents for use by courts or beneficiaries under orders of resti- tution who desire to utilize the collection services of such agents.
(5) Each contract entered pursuant to this section shall provide for a fee to be paid to or retained by the contracting agent for collection serv- ices. Such fee shall be designated as the cost of collection hereunder, and shall not exceed 33% of the amount of the debt to be collected. The cost of collection shall be deducted from the amount collected and shall not be in addition to the debts owed to courts or restitution.
(d) Judicial districts of the state of Kansas are authorized to utilize the collection services of contracting agents pursuant to this section for the purpose of collecting all outstanding debts owed to courts. Subject to rules and orders of the Kansas supreme court, each judicial district may establish by local rule guidelines for the compromise of court costs, fines, attorney fees and other charges assessed in district court cases.
(e) Any beneficiary under an order of restitution entered by a court after this section takes effect is authorized to utilize the collection services of contracting agents pursuant to this section for the purpose of collecting all outstanding amounts owed under such order of restitution.
(f) Contracts entered hereunder shall provide for the payment of any amounts collected to the clerk of the district court for the court in which the debt being collected originated. In accounting for amounts collected from any person pursuant to this section, the district court clerk shall credit the person's amount owed in the amount of the gross proceeds collected and shall reduce the amount owed by any person by that portion of any payment which constitutes the cost of collection pursuant to this section.
(g) With the appropriate cost of collection paid to the contracting agent as agreed upon in the contract hereunder, the clerk shall then distribute amounts collected hereunder as follows:
(1) When collection services are utilized pursuant to subsection (d), all amounts shall be applied against the debts owed to the court as spec- ified in the original judgment creating the debt;
(2) when collection services are utilized pursuant to subsection (e), all amounts shall be paid to the beneficiary under the order of restitution designated to receive such restitution, except where that beneficiary has received recovery from the Kansas crime victims compensation board and such board has subrogation rights pursuant to K.S.A. 74-7312 and amend- ments thereto, in which case all amounts shall be paid to the board until its subrogation lien is satisfied.
(h) Whenever collection services are being utilized against the same debtor pursuant to both subsections (d) and (e), any amounts collected by a contracting agent shall be first applied to satisfy subsection (e) debts, debts pursuant to an order of restitution. Upon satisfaction of all such debts, amounts received from the same debtor shall then be applied to satisfy subsection (d) debts, debts owed to courts.
Sec. 2. K.S.A. 21-4603d is hereby amended to read as follows: 21- 4603d. (a) Whenever any person has been found guilty of a crime, the court may adjudge any of the following:
(1) Commit the defendant to the custody of the secretary of correc- tions if the current crime of conviction is a felony and the sentence pre- sumes imprisonment, or the sentence imposed is a dispositional departure to imprisonment; or, if confinement is for a misdemeanor, to jail for the term provided by law;
(2) impose the fine applicable to the offense;
(3) release the defendant on probation if the current crime of con- viction and criminal history fall within a presumptive nonprison category or through a departure for substantial and compelling reasons subject to such conditions as the court may deem appropriate. In felony cases except for violations of K.S.A. 8-1567 and amendments thereto, the court may include confinement in a county jail not to exceed 30 days, which need not be served consecutively, as a condition of probation or community corrections placement;
(4) assign the defendant to a community correctional services pro- gram in presumptive nonprison cases or through a departure for substan- tial and compelling reasons subject to such conditions as the court may deem appropriate, including orders requiring full or partial restitution;
(5) assign the defendant to a conservation camp for a period not to exceed 180 days as a condition of probation followed by a 180-day period of follow-up through adult intensive supervision by a community correc- tional services program, if the offender successfully completes the con- servation camp program. If the defendant was classified in grid blocks 3- G, 3-H or 3-I of the sentencing guidelines grid for drug crimes, the court may impose a nonprison sanction on the condition that the offender com- plete the program at the Labette correctional conservation camp. Such a placement decision shall not be considered a departure and shall not be subject to appeal;
(6) assign the defendant to a house arrest program pursuant to K.S.A. 21-4603b and amendments thereto;
(7) order the defendant to attend and satisfactorily complete an al- cohol or drug education or training program as provided by subsection (3) of K.S.A. 21-4502 and amendments thereto;
(8) order the defendant to repay the amount of any reward paid by any crime stoppers chapter, individual, corporation or public entity which materially aided in the apprehension or conviction of the defendant; or repay the amount of any public funds utilized by a law enforcement agency to purchase controlled substances from the defendant during the investigation which leads to the defendant's conviction. Such repayment of the amount of any public funds utilized by a law enforcement agency shall be deposited and credited to the same fund from which the public funds were credited to prior to use by the law enforcement agency;
(9) impose any appropriate combination of (1), (2), (3), (4), (5), (6), (7) and (8); or
(10) suspend imposition of sentence in misdemeanor cases.
In addition to or in lieu of any of the above, the court shall order the defendant to pay restitution, which shall include, but not be limited to, damage or loss caused by the defendant's crime, unless the court finds compelling circumstances which would render a plan of restitution un- workable. If the court finds a plan of restitution unworkable, the court shall state on the record in detail the reasons therefor.
If the court orders restitution, the restitution shall be a judgment against the defendant which may be collected by the court by garnishment or other execution as on judgments in civil cases. If, after 60 days from the date restitution is ordered by the court, a defendant is found to be in noncompliance with the plan established by the court for payment of restitution, and the victim to whom restitution is ordered paid has not initiated proceedings in accordance with K.S.A. 60-4301 et seq. and amendments thereto, the court shall assign an agent procured by the at- torney general pursuant to section 1 and amendments thereto to collect the restitution on behalf of the victim. The administrative judge of each judicial district may assign such cases to an appropriate division of the court for the conduct of civil collection proceedings.
In addition to or in lieu of any of the above, the court shall order the defendant to submit to and complete an alcohol and drug evaluation, and pay a fee therefor, when required by subsection (4) of K.S.A. 21-4502 and amendments thereto.
In imposing a fine the court may authorize the payment thereof in installments. In releasing a defendant on probation, the court shall direct that the defendant be under the supervision of a court services officer. If the court commits the defendant to the custody of the secretary of cor- rections or to jail, the court may specify in its order the amount of res- titution to be paid and the person to whom it shall be paid if restitution is later ordered as a condition of parole or conditional release.
When a new felony is committed while the offender is incarcerated and serving a sentence for a felony or while the offender is on probation, assignment to a community correctional services program, parole, con- ditional release, or postrelease supervision for a felony, a new sentence shall be imposed pursuant to the consecutive sentencing requirements of K.S.A. 21-4608, and amendments thereto, and the court may sentence the offender to imprisonment for the new conviction, even when the new crime of conviction otherwise presumes a nonprison sentence. In this event, imposition of a prison sentence for the new crime does not con- stitute a departure.
Prior to imposing a dispositional departure for a defendant whose of- fense is classified in the presumptive nonprison grid block of either sen- tencing guideline grid, prior to sentencing a defendant to incarceration whose offense is classified in grid blocks 5-H, 5-I or 6-G of the sentencing guidelines grid for nondrug crimes, or prior to revocation of a nonprison sanction of a defendant whose offense is classified in the presumptive nonprison grid block of either sentencing guideline grid or grid blocks 5- H, 5-I or 6-G of the sentencing guidelines grid for nondrug crimes, the court shall consider placement of the defendant in the Labette correc- tional conservation camp. Pursuant to this paragraph the defendant shall not be sentenced to imprisonment if space is available in the conservation camp and the defendant meets all of the conservation camp's placement criteria unless the court states on the record the reasons for not placing the defendant in the conservation camp.
The court in committing a defendant to the custody of the secretary of corrections shall fix a term of confinement within the limits provided by law. In those cases where the law does not fix a term of confinement for the crime for which the defendant was convicted, the court shall fix the term of such confinement.
(b) Dispositions which do not involve commitment to the custody of the secretary of corrections shall not entail the loss by the defendant of any civil rights.
(c) This section shall not deprive the court of any authority conferred by any other Kansas statute to decree a forfeiture of property, suspend or cancel a license, remove a person from office, or impose any other civil penalty as a result of conviction of crime.
(d) An application for or acceptance of probation or assignment to a community correctional services program shall not constitute an acqui- escence in the judgment for purpose of appeal, and any convicted person may appeal from such conviction, as provided by law, without regard to whether such person has applied for probation, suspended sentence or assignment to a community correctional services program.
(e) The secretary of corrections is authorized to make direct place- ment to the Labette correctional conservation camp of an inmate sen- tenced to the secretary's custody if the inmate: (1) Has been sentenced to the secretary for a probation revocation or as a departure from the presumptive nonimprisonment grid block of either sentencing grid; and (2) otherwise meets admission criteria of the camp. If the inmate suc- cessfully completes the 180-day conservation camp program, the secre- tary of corrections shall report such completion to the sentencing court and the county or district attorney. The inmate shall then be assigned by the court to 180 days of follow-up supervision conducted by the appro- priate community corrections services program. The court may also order that supervision continue thereafter for the length of time authorized by K.S.A. 21-4611 and amendments thereto.
(f) When it is provided by law that a person shall be sentenced pur- suant to K.S.A. 1993 Supp. 21-4628, prior to its repeal, the provisions of this section shall not apply.
Sec. 3. K.S.A. 60-2310 is hereby amended to read as follows: 60- 2310. (a) Definitions. As used in this act and the acts of which this act is amendatory, unless the context otherwise requires, the following words and phrases shall have the meanings respectively ascribed to them:
(1) ``Earnings'' means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus or otherwise;
(2) ``disposable earnings'' means that part of the earnings of any in- dividual remaining after the deduction from such earnings of any amounts required by law to be withheld;
(3) ``wage garnishment'' means any legal or equitable procedure through which the earnings of any individual are required to be withheld for payment of any debt; and
(4) ``federal minimum hourly wage'' means that wage prescribed by subsection (a)(1) of section 6 of the federal fair labor standards act of 1938, and any amendments thereto.
(b) Restriction on wage garnishment. Subject to the provisions of sub- section (e), only the aggregate disposable earnings of an individual may be subjected to wage garnishment. The maximum part of such earnings of any wage earning individual which may be subjected to wage garnish- ment for any workweek or multiple thereof may not exceed the lesser of: (1) Twenty-five percent of the individual's aggregate disposable earnings for that workweek or multiple thereof; (2) the amount by which the in- dividual's aggregate disposable earnings for that workweek or multiple thereof exceed an amount equal to 30 times the federal minimum hourly wage, or equivalent multiple thereof for such longer period; or (3) the amount of the plaintiff's claim as found in the order for garnishment. No one creditor may issue more than one garnishment against the earnings of the same judgment debtor during any one 30-day period, but the court shall allow the creditor to file amendments or corrections of names or addresses of any party to the order of garnishment at any time. In an- swering such order the garnishee-employer shall withhold from all earn- ings of the judgment-debtor for any pay period or periods ending during such 30-day period an amount or amounts as are allowed and required by law. Nothing in this act shall be construed as charging the plaintiff in any garnishment action with the knowledge of the amount of any defen- dant's earnings prior to the commencement of such garnishment action.
(c) Sickness preventing work. If any debtor is prevented from work- ing at the debtor's regular trade, profession or calling for any period greater than two weeks because of illness of the debtor or any member of the family of the debtor, and this fact is shown by the affidavit of the debtor, the provisions of this section shall not be invoked against any such debtor until after the expiration of two months after recovery from such illness.
(d) Assignment of account. If any person, firm or corporation sells or assigns an account to any person or collecting agency, that person, firm or corporation or their assignees shall not have or be entitled to the ben- efits of wage garnishment. The provision of this subsection shall not apply to the following:
(1) Assignments of support rights to the secretary of
social and re- habilitation services pursuant to K.S.A. 39-709 and
39-756, and amend- ments thereto,
(2) support rights which have been assigned to any other
state pur- suant to title IV-D of the federal social security act
(42 U.S.C. (section) 651 et seq.)
, or to
(3) assignments of accounts receivable or taxes receivable to the di- rector of accounts and reports made under K.S.A. 75-3728b and amend- ments thereto; or
(4) collections pursuant to contracts entered into in accordance with section 1 and amendments thereto involving the collection of restitution or debts to district courts.
(e) Exceptions to restrictions on wage garnishment. The restrictions on the amount of disposable earnings subject to wage garnishment as provided in subsection (b) shall not apply in the following instances:
(1) Any order of any court for the support of any person, including any order for support in the form of alimony, but the foregoing shall be subject to the restriction provided for in subsection (g);
(2) any order of any court of bankruptcy under chapter XIII of the federal bankruptcy act; and
(3) any debt due for any state or federal tax.
(f) Prohibition on courts. No court of this state may make, execute or enforce any order or process in violation of this section.
(g) The maximum part of the aggregate disposable earnings of an individual for any workweek which is subject to garnishment to enforce any order for the support of any person shall not exceed:
(1) If the individual is supporting a spouse or dependent child (other than a spouse or child with respect to whose support such order is used), 50% of the individual's disposable earnings for that week;
(2) if the individual is not supporting a spouse or dependent child described in clause (1), 60% of such individual's disposable earnings for that week; and
(3) with respect to the disposable earnings of any individual for any workweek, the 50% specified in clause (1) shall be 55% and the 60% specified in clause (2) shall be 65%, if such earnings are subject to gar- nishment to enforce a support order for a period which is prior to the twelve-week period which ends with the beginning of such workweek.
Sec. 4. K.S.A. 1995 Supp. 75-6202 is hereby amended to read as follows: 75-6202. As used in this act:
(a) ``Debtor'' means any person who:
(1) Owes a debt to the state of Kansas or any state agency or any municipality;
(2) owes support to an individual, or an agency of another state, who is receiving assistance in collecting that support under K.S.A. 39-756 and amendments thereto or under part D of title IV of the federal social security act (42 U.S.C. (section) 651 et seq.), as amended; or
(3) owes a debt to a foreign state agency.
(b) ``Debt'' means:
(1) Any liquidated sum due and owing to the state of Kansas, or any state agency, municipality or foreign state agency which has accrued through contract, subrogation, tort, operation of law, or any other legal theory regardless of whether there is an outstanding judgment for that sum. A debt shall not include: (A) Special assessments except when the owner of the property assessed petitioned for the improvement and any successor in interest of such owner of property; or (B) fines or penalties assessed by a municipal court, except for traffic infractions and offenses; or
(2) any amount of support due and owing an individual, or an agency of another state, who is receiving assistance in collecting that support under K.S.A. 39-756 and amendments thereto or under part D of title IV of the federal social security act (42 U.S.C. (section) 651 et seq.), as amended, which amount shall be considered a debt due and owing the department of social and rehabilitation services for the purposes of this act.
(c) ``Refund'' means any amount of Kansas income tax refund due to any person as a result of an overpayment of tax, and for this purpose, a refund due to a husband and wife resulting from a joint return shall be considered to be separately owned by each individual in the proportion of each such spouse's contribution to income, as the term ``contribution to income'' is defined by rules and regulations of the secretary of revenue.
(d) ``Net proceeds collected'' means gross proceeds collected through final setoff against a debtor's earnings, refund or other payment due from the state or any state agency minus any collection assistance fee charged by the director of accounts and reports of the department of administra- tion.
(e) ``State agency'' means any state office, officer, department, board, commission, institution, bureau, agency or authority or any division or unit thereof and any judicial district of this state or the clerk or clerks thereof. ``State agency'' shall also include any district court utilizing col- lection services pursuant to section 1 and amendments thereto to collect debts owed to such court.
(f) ``Person'' means an individual, proprietorship, partnership, limited partnership, association, trust, estate, business trust, corporation, other entity or a governmental agency, unit or subdivision.
(g) ``Director'' means the director of accounts and reports of the de- partment of administration.
(h) ``Municipality'' means any municipality as defined by K.S.A. 75- 1117, and amendments thereto.
(i) ``Payor agency'' means any state agency which holds money for, or owes money to, a debtor.
(j) ``Foreign state or foreign state agency'' means the states of Colo- rado, Missouri, Nebraska or Oklahoma or any agency of such states which has entered into a reciprocal agreement pursuant to K.S.A. 1995 Supp. 75-6215 and amendments thereto.
New Sec. 5. Records or information in the custody of the Kansas parole board, any community correctional service program or any district court regarding the financial assets, income or employment of a criminal offender shall be subject to disclosure to any victim to whom such of- fender has been ordered to pay restitution, or to anyone acting on behalf of such victim to collect the ordered restitution, until such time as all restitution is paid in full.
Sec. 6. K.S.A. 21-4603d and 60-2310 and K.S.A. 1995 Supp. 75-6202 are hereby repealed.
Sec. 7. This act shall take effect and be in force from and after its publication in the statute book.
Approved May 3, 1996.