Legislature(2017 - 2018)GRUENBERG 120

02/28/2017 05:30 PM House STATE AFFAIRS

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Moved CSHB 91(STA) Out of Committee
-- Public Testimony --
Heard & Held
        HB 127-CRIM. CONV. OVERTURNED: RECEIVE PAST PFD                                                                     
5:41:46 PM                                                                                                                    
CHAIR KREISS-TOMKINS  announced that the final  order of business                                                               
would be  HOUSE BILL  NO. 127,  "An Act  relating to  a permanent                                                               
fund  dividend  for  an  individual  whose  conviction  has  been                                                               
vacated, reversed, or dismissed;  and relating to the calculation                                                               
of the value of the  permanent fund dividend by including payment                                                               
to individuals eligible for a  permanent fund dividend because of                                                               
a conviction that has been vacated, reversed, or dismissed."                                                                    
5:42:15 PM                                                                                                                    
REPRESENTATIVE  SCOTT  KAWASAKI,  Alaska  State  Legislature,  as                                                               
prime sponsor of HB 127,  paraphrased from the sponsor statement,                                                               
which read as follows [original punctuation provided]:                                                                          
     The  State   of  Alaska  Department  of   Law  Criminal                                                                    
     Division's  mission  is  to "assure  safe  and  healthy                                                                    
     communities  by  prosecuting  and  convicting  criminal                                                                    
     offenders throughout  Alaska." Likewise, the  State has                                                                    
     a responsibility  to ensure  those convicted  of crimes                                                                    
     are prosecuted fairly and with  due justice, and in the                                                                    
     event  of wrongful  convictions,  compensate those  who                                                                    
     have faced such an injustice.                                                                                              
     Incarcerated  Alaskans   forgo  their   Permanent  Fund                                                                    
     Dividends  [PFD] to  the  State. HB  127  seeks to  pay                                                                    
     Permanent Fund Dividends  to Alaskans whose convictions                                                                    
     were vacated,  reversed or dismissed. If  passed, those                                                                    
     eligible  must  apply  for  the  PFD  within  120  days                                                                    
     following the  new judgment or  within 120 days  of the                                                                    
     effective date of the bill.  Currently, this bill would                                                                    
     help   4  Alaskans   who  were   victims  of   wrongful                                                                    
     conviction  at  a total  cost  of  $103,450.96 in  owed                                                                    
     The PFD is  a defining characteristic of  what it means                                                                    
     to be an  Alaskan. Providing the PFD  to those Alaskans                                                                    
     who  have wrongfully  had  their  liberties taken  away                                                                    
     from them is one of the  few things the State of Alaska                                                                    
     can  do  to help  them  reestablish  a normal  life  in                                                                    
     providing means to find housing, food and education.                                                                       
     A   wrongful  conviction   is  a   true  tragedy.   The                                                                    
     transition back to civilian  life for these individuals                                                                    
     can be  difficult due  to the loss  of time  with loved                                                                    
     ones, let alone the loss  of income otherwise earned. I                                                                    
     ask your support for this  bill that would help victims                                                                    
     of injustice  with their  transition back  into society                                                                    
     as the State looks to  ensure that the criminal justice                                                                    
     system is ever more thorough and fair.                                                                                     
5:45:01 PM                                                                                                                    
WILLIAM  JODWALIS, Staff,  Representative Scott  Kawasaki, Alaska                                                               
State  Legislature,  stated that  the  intent  of  HB 127  is  to                                                               
reimburse  wrongfully convicted  individuals  with the  permanent                                                               
fund dividend  (PFD) that they  would have acquired had  they not                                                               
been  incarcerated  and to  include  such  compensation into  the                                                               
calculation process of the PFD.                                                                                                 
MR.  JODWALIS relayed  that currently  under  AS 43.23.005(d),  a                                                               
person cannot receive his/her PFD  if during the qualifying year:                                                               
the individual was  sentenced because of conviction  in the state                                                               
of a felony;  was incarcerated for all  or part of the  year as a                                                               
class A  felon; or  received a misdemeanor  after a  prior felony                                                               
conviction or two or more prior misdemeanor convictions.                                                                        
MR. JODWALIS paraphrased from the  sectional analysis, which read                                                               
as follows [original punctuation provided]:                                                                                     
     Section 1                                                                                                                
          (i)    Establishes    that    individuals    whose                                                                    
          convictions have    been  vacated or  reversed and                                                                    
          either dismissed or retried   and     found    not                                                                    
          guilty  are  eligible  to  receive  the  permanent                                                                    
          fund  dividend for  each year  the individual  was                                                                    
          ineligible     while incarcerated                                                                                     
          (j)  Sets the  time  frame  for individuals  being                                                                    
          able to apply  for    permanent   fund    dividend                                                                    
          compensation at no later than      within      120                                                                    
          days after a dismissal or not guilty finding.                                                                         
     Section 2                                                                                                                
     Amends AS 43.23.025(a),  which involves the calculation                                                                    
     of the annual  value for the PFD,  under subsection (C)                                                                    
     to include (i)  of section 1 of this  Bill, which would                                                                    
     factor  the compensation  of  Permanent Fund  Dividends                                                                    
     for wrongful  convictions into  the calculation  of the                                                                    
     annual PFD values.                                                                                                         
     Section 3                                                                                                                
     Amends uncodified law of the  State of Alaska by adding                                                                    
     a new section  that states that those  who are eligible                                                                    
     for  PFD compensation  as defined  under  section 1  of                                                                    
     this  bill, yet  have had  their conviction  overturned                                                                    
     before this  act takes place,  will have 120  days from                                                                    
     its effective date to apply for the PFD.                                                                                   
5:48:01 PM                                                                                                                    
BILL  OBERLY,   Executive  Director,  Alaska   Innocence  Project                                                               
(AKIP), stated that  the purpose of HB  127 is to fill  a hole in                                                               
the PFD  statutes by  providing eligibility  for PFDs  to persons                                                               
who were  wrongfully prevented from  applying for the  years they                                                               
were   wrongfully  imprisoned.     Individuals   who  have   been                                                               
exonerated -  those whose convictions  were vacated  or reversed,                                                               
those for  whom all  charges were dismissed,  or those  found not                                                               
guilty at retrial  - should be eligible to apply  for and receive                                                               
each  of  the  PFDs  they   were  denied  during  their  wrongful                                                               
MR. OBERLY  attested that  when an  individual is  exonerated and                                                               
released  from   prison  in  Alaska,  he/she   gets  no  monetary                                                               
assistance  and  does not  receive  the  services that  a  guilty                                                               
person  receives  upon release.    He  said  that Alaska  has  no                                                               
compensation law  at this time  for wrongful convictions,  and he                                                               
added that 32  states and the District of Columbia  all have such                                                               
legislation.   In 2012,  60 percent  of compensation  received by                                                               
such  individuals   was  through  statute,  30   percent  through                                                               
lawsuit, and  10 percent  through special  legislation.   He said                                                               
that  with  the  passage  of  compensation  bills  by  additional                                                               
states,  now  81% of  compensation  is  by statute,  which  makes                                                               
lawsuits less likely.                                                                                                           
MR.  OBERLY maintained  that the  proposed legislation  would not                                                               
provide compensation by statute  but would address funds directly                                                               
taken  from individuals  because of  their wrongful  convictions.                                                               
He stated  that HB  127 applies  to the  "Fairbanks Four"  - four                                                               
[wrongly convicted]  individuals who were exonerated  in December                                                               
of 2015.   They were  released with  nothing - no  job experience                                                               
and  no education  beyond  high  school.   He  cited that  Marvin                                                               
Roberts, who  was valedictorian of  his high school class  and in                                                               
1997  had a  promising  future,  is now  delivering  pizzas.   He                                                               
asserted that for these four  individuals, the benefit of getting                                                               
their PFDs  would be immediate  and substantial.  He  stated that                                                               
the [PFD]  money was wrongfully  taken from these  individuals as                                                               
was 18  years of their  lives, and HB  127 would help  to correct                                                               
this injustice and prevent future PFD denials.                                                                                  
5:52:25 PM                                                                                                                    
REPRESENTATIVE  BIRCH   asked  if  there  were   any  conditions,                                                               
provisions, or  signed agreements  upon release of  the Fairbanks                                                               
Four precluding litigation or civil recourse.                                                                                   
MR. OBERLY  responded that  through a  signed agreement  with the                                                               
State of  Alaska, the four men  agreed not to file  suit with the                                                               
state for  compensation.  He  emphasized that the  agreement only                                                               
prohibited   them   from   filing  suit,   not   from   receiving                                                               
compensation by some  other means.  He opined  that the agreement                                                               
does not affect HB 127.                                                                                                         
REPRESENTATIVE BIRCH suggested  that while not a  lawsuit, HB 127                                                               
would  constitute  an  active engagement  in  pursuing  financial                                                               
remedy.    He expressed  interest  in  receiving  a copy  of  the                                                               
5:55:33 PM                                                                                                                    
REPRESENTATIVE TUCK  said he  is surprised  that Alaska  does not                                                               
already have  legislation that reverses  the harm  of withholding                                                               
PFDs in the  case of wrongful convictions.  He  mentioned that it                                                               
is money that  should never have been taken, and  without HB 127,                                                               
Alaska is imposing more unnecessary  harm on innocent people.  He                                                               
maintained that  this compensation is separate  from any judicial                                                               
action.  He expressed his support  for Section 3 of HB 127, which                                                               
allows other victims of wrongful  convictions to be able to apply                                                               
for their PFDs.                                                                                                                 
5:57:01 PM                                                                                                                    
REPRESENTATIVE JOHNSON asked  if there are people  other than the                                                               
Fairbanks   Four  who   would  be   affected  [by   the  proposed                                                               
REPRESENTATIVE  KAWASAKI  answered that  HB  127  has received  a                                                               
great deal  of attention specifically  due to the  Fairbanks Four                                                               
but that the proposed legislation  would benefit everyone who has                                                               
been  incarcerated wrongly.    He  pointed out  that  due to  DNA                                                               
evidence, 2016 has had the  largest number of exonerations in the                                                               
history of  United States, and  20 of the exonerated  people were                                                               
on death row.  He mentioned  that despite the best efforts of the                                                               
justice  system,  errors are  made,  and  HB  127 would  help  to                                                               
restore faith in that system.                                                                                                   
REPRESENTATIVE JOHNSON asked  for the number of  people who would                                                               
be affected beside the four men mentioned.                                                                                      
REPRESENTATIVE  KAWASAKI responded  that  information is  readily                                                               
available on  some individuals, but  for those who have  not been                                                               
prosecuted, the data  is more difficult to obtain.   He said that                                                               
HB 127  would set up a  process whereby a person  who was wrongly                                                               
convicted - his/her  case was vacated, dismissed,  or reversed in                                                               
court  -  could  apply  for  the PFDs  within  120  days,  and  a                                                               
determination would be made regarding qualification.                                                                            
REPRESENTATIVE  JOHNSON  referred  to the  zero-fiscal  note  and                                                               
expressed a  desire to get  a sense of  the amount of  money that                                                               
might be  involved.   She stated  that the  amount that  would be                                                               
owed to  the Fairbanks Four is  $103,450.96.  She asked  what the                                                               
process  was to  identify other  recipients and  what the  fiscal                                                               
note would be.                                                                                                                  
REPRESENTATIVE KAWASAKI  answered that the Department  of Revenue                                                               
(DOR) sets aside a fund  titled, "Reserve for Prior Year Dividend                                                               
Liabilities,"  which is  used to  pay dividends  to Alaskans  who                                                               
through  some extenuating  circumstances  were not  able to  file                                                               
timely.   He  said that  fund is  available for  any compensation                                                               
potential that  exists.  Currently  the fund is at  $233,000, and                                                               
it varies from year to year.                                                                                                    
REPRESENTATIVE  JOHNSON stated  that she  is concerned  about the                                                               
lack of information on the fiscal liability of HB 127.                                                                          
REPRESENTATIVE  KAWASAKI responded  that his  staff could  try to                                                               
obtain some preliminary estimates.                                                                                              
6:02:29 PM                                                                                                                    
REPRESENTATIVE LEDOUX  asked if  everyone who has  been convicted                                                               
of a felony is denied receiving PFDs only while incarcerated.                                                                   
REPRESENTATIVE KAWASAKI  answered that  under AS  43.23.005(d), a                                                               
person  would  be  ineligible  to receive  his/her  PFD  for  the                                                               
qualifying  year if  he/she:   had  been sentenced  because of  a                                                               
conviction of a  felony; was incarcerated for all or  part of the                                                               
year as  a class  A felon;  or had  received a  misdemeanor after                                                               
having  already  been  convicted  of a  felony  or  after  having                                                               
received two prior misdemeanors.                                                                                                
6:03:58 PM                                                                                                                    
SARA  RACE, Director,  Permanent Fund  Dividend Division  (PFDD),                                                               
stated that if  some individual falls into one  of the categories                                                               
specified in AS  43.23.005(d), he/she is ineligible  to receive a                                                               
PFD.   She added  that these individuals  are not  prevented from                                                               
applying  for a  PFD  for the  qualifying year,  and  if they  do                                                               
apply,  the statute  assists PFDD  in making  a determination  of                                                               
REPRESENTATIVE  LEDOUX  asked whether  a  person  convicted of  a                                                               
felony or other crime must be incarcerated to be denied a PFD.                                                                  
MS. RACE answered  that if a person is convicted,  there may be a                                                               
period during  which he/she  is not incarcerated.   In  that case                                                               
the person would be deemed ineligible for a PFD for that period.                                                                
REPRESENTATIVE  LEDOUX asked  if a  person who  is convicted  and                                                               
appeals the  conviction is  ineligible [to  receive the  PFD] for                                                               
the   time  spent   appealing  the   conviction,   even  if   not                                                               
MS. RACE  responded, "That  is correct."   She  explained further                                                               
that  for a  person  whose conviction  has  been overturned,  the                                                               
regulations allow  60 days  to appeal PFDD's  denial of  the PFD.                                                               
If the denial  is appealed, PFDD then contacts  the Department of                                                               
Corrections (DOC) to  determine if the individual  falls into one                                                               
of the categories  stated in AS 43.23.005(d).  If  so, the denial                                                               
would be upheld.                                                                                                                
REPRESENTATIVE  LEDOUX  relayed  the  scenario of  a  person  who                                                               
applied for  the PFD while in  jail, the PFD was  denied, but the                                                               
conviction was vacated upon appeal.   She asked if, under HB 127,                                                               
that person would receive the PFD  at the time the conviction was                                                               
MS. RACE  answered that  in that  scenario, the  individual would                                                               
most likely  contact PFDD to  activate the PFD appeal  process at                                                               
the time the conviction was overturned.                                                                                         
REPRESENTATIVE LEDOUX  commented that  the person would  have had                                                               
to apply  previously for the PFD  and it is unlikely  that he/she                                                               
would have known to do that.                                                                                                    
REPRESENTATIVE  LEDOUX opined  that the  proposed legislation  is                                                               
entirely different  from civil litigation.   She stated  that the                                                               
Fairbanks Four agreed  not to engage in  civil litigation against                                                               
the  state for  wrongful imprisonment,  but HB  127 represents  a                                                               
political  process.    She  expressed   her  dismay  by  how  the                                                               
Department of  Law (DOL) handled  the case.   She opined  that if                                                               
someone  is  innocent,  he/she should  be  released  from  prison                                                               
without  being  asked to  sign  an  agreement giving  up  his/her                                                               
rights not  to sue  for wrongful conviction  to be  released from                                                               
prison without the  state contesting it.  She  added that without                                                               
litigation,  any wrongdoing  in  the wrongful  conviction is  not                                                               
6:09:58 PM                                                                                                                    
REPRESENTATIVE  WOOL  agreed  with  Representative  LeDoux.    He                                                               
mentioned  that  when the  topic  of  PFD reimbursement  came  up                                                               
regarding the Fairbanks  Four, he heard that their  PFD money was                                                               
used to pay  for their incarceration.  He asked  if, in fact, PFD                                                               
money  for  incarcerated  Alaskans  is  transferred  to  DOC  for                                                               
prisoner "room and board."                                                                                                      
REPRESENTATIVE KAWASAKI replied that  under current law, there is                                                               
a  crime  victim  compensation  fund   into  which  the  PFDs  of                                                               
incarcerated Alaskans are paid.   The fund is administered by the                                                               
Violent  Crimes Compensation  Board and  is used  for victims  of                                                               
violent  crimes.   He  added that  funds also  go  to the  Alaska                                                               
Council  of Domestic  Violence and  Sexual Assault  (CDVSA), DOC,                                                               
probation  programs, the  Office  of Victims'  Rights (OVR),  and                                                               
non-profit  victims' rights  organizations by  way of  designated                                                               
grants.   He stated  there are  other statutes  that specifically                                                               
outline the ways PFDs are  garnished for unpaid child support and                                                               
unpaid University of Alaska tuition.                                                                                            
REPRESENTATIVE WOOL  asked if  the PFD  money is  reallocated for                                                               
those who are incarcerated without them applying for it.                                                                        
MS. RACE responded  that PFDD uses a calculated  formula based on                                                               
information from DOC regarding the  number of people incarcerated                                                               
for felonies and misdemeanors.                                                                                                  
REPRESENTATIVE  WOOL  asked  for   confirmation  that  the  state                                                               
automatically applies  for those people who  are incarcerated and                                                               
ineligible to receive a PFD.                                                                                                    
MS. RACE confirmed that the money is appropriated to DOC.                                                                       
REPRESENTATIVE WOOL  commented that a  person in prison  does not                                                               
have to apply  for the PFD for it to  be redistributed on his/her                                                               
behalf,  but if  the person's  conviction is  determined to  have                                                               
been  wrongful,   then  he/she   must  apply  within   a  certain                                                               
CHAIR KREISS-TOMKINS asked for clarification  that for people who                                                               
are  in jail  and  not getting  PFDs because  of  the crime  they                                                               
committed,  the  PFDD is  giving  the  PFD  money  to DOC  as  an                                                               
interagency cash transfer.                                                                                                      
MS.  RACE agreed  with that  assessment.   She  offered that  the                                                               
money is  a calculated appropriation  to DOC  and is not  a "one-                                                               
CHAIR KREISS-TOMKINS asked for an  explanation of "calculated" as                                                               
opposed to "one-for-one."                                                                                                       
MS.  RACE  responded  that  DOC  provides  PFDD  with  a  complex                                                               
spreadsheet  along with  a list  of  individuals incarcerated  or                                                               
convicted of  a felony or misdemeanor.   She said that  PFDD uses                                                               
the same standard  calculation to determine the  percentage to be                                                               
appropriated to DOC  that is used to calculate the  amount of the                                                               
PFD.   This calculation represents the  reasonable expectation of                                                               
the percentage  of people who will  be eligible for the  PFD upon                                                               
6:17:17 PM                                                                                                                    
REPRESENTATIVE WOOL asked how child  support is paid from the PFD                                                               
of an incarcerated person owing child  support.  He enquired if a                                                               
garnishment  on  file  with the  Alaska  Child  Support  Services                                                               
Division  (CSSD) would  result in  continued deductions  from the                                                               
PFD of that person after imprisonment.                                                                                          
MS. RACE  explained that the  garnishment process requires  a PFD                                                               
application  to  be filed  by  an  eligible  applicant.   In  the                                                               
scenario  Representative  Wool  mentioned, the  convicted  person                                                               
would have been  deemed ineligible; therefore, the  PFD could not                                                               
be garnished.                                                                                                                   
6:19:56 PM                                                                                                                    
JERRY BURNETT, Deputy Commissioner,  Department of Revenue (DOR),                                                               
confirmed that the  amount of PFD funds appropriated  to DOC each                                                               
year  is  a calculated  amount  based  on  the number  of  people                                                               
incarcerated.    He  reiterated   that  regarding  child  support                                                               
garnishment  and  student   loan  garnishment,  the  incarcerated                                                               
person is not eligible for a  PFD; therefore, there is nothing to                                                               
REPRESENTATIVE WOOL asked for  confirmation that the incarcerated                                                               
person's PFD money is allocated to  DOC even though the person is                                                               
ineligible for the PFD.                                                                                                         
MR.  BURNETT confirmed  that  assessment.   He  stated that  this                                                               
appropriation  is   included  among  the   statutorily  allowable                                                               
appropriations by the legislature.                                                                                              
REPRESENTATIVE WOOL  asked, "If that  same number of  people that                                                               
are in  prison - let's  say 5,000 ... -  if that 5,000  people in                                                               
the  population  just didn't  apply  one  year, then  that  would                                                               
benefit the rest  of the people.   Their checks would go  up by a                                                               
little bit ... because there would  be less people to disperse it                                                               
to.  But in this case, it's automatically taken out."                                                                           
MR. BURNETT answered yes.                                                                                                       
6:23:28 PM                                                                                                                    
REPRESENTATIVE JOHNSON commented  that the intent [of  HB 127] is                                                               
not to retrieve  the money from DOC.  She  asked for confirmation                                                               
that there is a fund for "under-claimed or unclaimed" PFDs.                                                                     
REPRESENTATIVE KAWASAKI  stated that there  is such a fund  - the                                                               
Reserve for  Prior Year Dividend  Liabilities - and  it currently                                                               
contains about $233,000.                                                                                                        
REPRESENTATIVE JOHNSON asked  if this is the fund  from which the                                                               
PFD money would be paid under HB 127.                                                                                           
REPRESENTATIVE KAWASAKI responded yes.                                                                                          
6:24:51 PM                                                                                                                    
REPRESENTATIVE LEDOUX asked  how money gets into  the Reserve for                                                               
Prior Year Dividend Liabilities.                                                                                                
MR. BURNETT responded that each  year when the PFD is calculated,                                                               
funds are reserved,  because the exact numbers  of recipients and                                                               
successful appeals are unknown.   The reserve funds pay for prior                                                               
year  appeals  and  for  18-year-olds   whose  parents  have  not                                                               
previously applied  for them.   Reserving  this fund  reduces the                                                               
PFD check by a few cents,  and the fund carries forward in future                                                               
years.   If it  is not  used, it increases  the dividend  for the                                                               
next year; if it is used,  it decreases the dividend for the next                                                               
year.   He added  that under the  proposed legislation,  PFDs for                                                               
the wrongfully convicted  would be awarded for each  of the years                                                               
that  they were  eligible, if  they were  an Alaska  resident and                                                               
applied timely.                                                                                                                 
REPRESENTATIVE  LEDOUX asked  whether  someone sent  to a  prison                                                               
outside of the state would be considered an Alaska resident.                                                                    
MR. BURNETT  responded that he  believed they would  because they                                                               
would have been in the custody  of the State of Alaska during the                                                               
period of incarceration.                                                                                                        
6:27:53 PM                                                                                                                    
REPRESENTATIVE  WOOL  asked  why  and how  a  prisoner,  who  was                                                               
ineligible for a PFD, would have applied every year.                                                                            
MR.  BURNETT answered  that  it is  highly  unlikely that  people                                                               
would apply from prison believing  they would be ineligible, even                                                               
if they were able to file an application.                                                                                       
6:28:42 PM                                                                                                                    
CHAIR KREISS-TOMKINS announced that HB 127 was held over.                                                                       

Document Name Date/Time Subjects
HB127 Sponsor Statement 2.25.17.pdf HSTA 2/28/2017 5:30:00 PM
HB 127
HB127 Fiscal Note 2.25.17.pdf HSTA 2/28/2017 5:30:00 PM
HB 127
HB127 Supporting Document 2.25.17.pdf HSTA 2/28/2017 5:30:00 PM
HB 127
HB127 Supporting Document- Annual PFD Individual Payouts 2.25.17.pdf HSTA 2/28/2017 5:30:00 PM
HB 127
HB127 Supporting Document-PFD Graph 2.25.17.pdf HSTA 2/28/2017 5:30:00 PM
HB 127
HB127 Supporting Document- Supporting Letters 2.27.17.pdf HSTA 2/28/2017 5:30:00 PM
HB 127
HB127 Sectional Analysis ver A 2.27.17.pdf HSTA 2/28/2017 5:30:00 PM
HB 127
HB127 Supporting Document- Additional Support Letter 2.27.17.pdf HSTA 2/28/2017 5:30:00 PM
HB 127
HB127 Supporting Document- Additional Support Letter 2.27.17.pdf HSTA 2/28/2017 5:30:00 PM
HB 127
HB 91 Draft Proposed Amendment D.2 22817.pdf HSTA 2/28/2017 5:30:00 PM
HB 91
HB127 Supporting Document- Second Batch of Supporting Letters 2.28.17.pdf HSTA 2/28/2017 5:30:00 PM
HB 127
HB127 ver A 2.28.17.PDF HSTA 2/28/2017 5:30:00 PM
HB 127
HB127 Letter of Support FNA 3.13.17.pdf HSTA 2/28/2017 5:30:00 PM
HB 127