Who had to transport an Arkansas backup inmate from a county jail to state prison once a bed became available?

Plain-English summary

The Attorney General concluded that a county sheriff, rather than the Arkansas Department of Correction, had to transport a backup inmate from the county jail to a state prison once ADC bed space became available.

The opinion reconciled two parts of Arkansas law. A 1933 provision generally made ADC responsible for transporting people committed to state custody. A 2003 provision said the county reimbursement rate for holding backup inmates included the county's transport costs. The AG read the later reimbursement rule as an implied exception for backup inmates: if counties were paid for that transport, counties bore the duty to perform it.

The opinion acknowledged that a Carroll County circuit court had reached the opposite result in a May 2013 criminal case. The AG respectfully disagreed with that court's reading.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

How the opinion applied in 2013

County sheriffs and jail administrators

For an inmate committed to ADC but kept in a county jail because state bed space was unavailable, the opinion assigned the later trip to ADC to the county sheriff. That duty arose once ADC had an available bed.

State corrections officials

The opinion treated the 1933 ADC transport duty as the general rule. It treated the 2003 reimbursement language as the narrower rule for backup inmates and therefore as an implied exception to ADC's general duty.

County budget officials

The opinion read the uniform per diem reimbursement as already including a county's transport cost. It relied on the wording that the reimbursement rate "shall include the county's cost of transporting" backup inmates.

Common questions

What was a "backup inmate" in this opinion?

The opinion used that term for an inmate committed to ADC but held in a county jail because ADC lacked bed space.

Who had to transport that inmate after a state bed opened?

The AG concluded that the county sheriff had to take the inmate from the county jail to ADC.

Why did the AG assign the duty to counties when an older law assigned transport to ADC?

The 2003 law declared that the county reimbursement rate included transporting backup inmates to ADC. The AG reasoned that paying counties for that cost implied that counties were responsible for the trip in those cases.

Did a court agree with this interpretation?

Not in the circuit-court order discussed by the opinion. In State v. Stacy, the Carroll County Circuit Court read the 1933 rule as requiring ADC to transport all people committed to it and concluded that the 2003 law did not shift the duty. The AG expressly disagreed.

Background and statutory framework

Arkansas had used a county-reimbursement system for backup inmates since 1981. The opinion traced increases in the daily rate, including a 2001 rate said to contain a transport component, and described a cost study that asked counties about transportation connected with maintaining state inmates. In 2003, the General Assembly provided that the reimbursement rate included the county's cost of transporting backup inmates to ADC.

The opinion relied on A.C.A. § 12-27-113 for ADC's general transport responsibility and A.C.A. § 12-27-114 for the backup-inmate reimbursement system. It treated the later, specific reimbursement provision as creating an implied exception to the older general transport rule.

Citations and references

Statutes:

• A.C.A. § 12-27-113(d)(1) (Repl. 2009)
• A.C.A. § 12-27-114(b)(2)

Case:

• State v. Stacy, No. CR 2012-95ED (Carroll County Circuit Court, Modified Transport Order, May 7, 2013)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS

THe ATTORNEY GENERAL
Dustin McDANIEL

Opinion No. 2013-052

July 12, 2013

The Honorable Ray Hobbs, Director
Arkansas Department of Correction
Post Office Box 8707

Pine Bluff, Arkansas 71611-8707

Dear Director Hobbs:

This is my opinion on your question whether the county sheriff or the Arkansas Department of Correction (“ADC”) is responsible for taking a “back-up inmate”! from the county jail to ADC once ADC bed space is available.

RESPONSE

In my opinion, the sheriff is responsible for taking a back-up inmate from the county jail to ADC once ADC bed space is available. The law has stated since 1933 that ADC must take all inmates from the counties to ADC facilities. In my opinion, however, a law enacted in 2003 makes an exception to that rule for back- up inmates, and the counties are obligated to take back-up inmates to ADC once beds are available.

BACKGROUND

Some history and other background will aid in understanding. From 1905 until 1933, the sheriff was responsible for taking prisoners sentenced in his county to the penitentiary, and was entitled to receive expenses and a per diem fee from an ADC predecessor.” Since 1933, the law has provided generally that it is ADC’s

' Tuse your term “back-up inmate” to mean an inmate committed to ADC but held in the county jail “due to insufficient [ADC] bed space.” A.C.A. § 12-27-114(a)(1)(A)G) (Repl. 2009).

? See Act 110 of 1905 (codified at Kirby’s Dig. § 5894 and C&M Dig. § 9698).

323 CENTER STREET, SUITE 200 * LitTLE Rock, ARKANSAS 72201
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INTERNET WEBSITE * http://www.ag.state.ar.us/

The Honorable Ray Hobbs

Director, Arkansas Department of Correction
Opinion No. 2013-052

Page 2

duty to take convicted persons from county jails to state prisons.’ In 1968, the General Assembly gave sheriffs both the discretion to immediately take some prisoners to ADC and the right to receive “therefor . . . the fees provided by law.”

A system under which counties are reimbursed for holding back-up inmates began in 1981.° In 1991, the rate paid to the counties was increased from a variable rate of up to $18 a day to a flat rate of $25 a day.° In 2001, the per diem rate was increased to $28 and was said to include a transportation component.’ Also in 2001, the General Assembly directed ADC to cooperate with county officials to determine the counties’ actual daily costs of housing state inmates. An ADC- formed committee, which included four sheriffs and a representative of the Arkansas Sheriffs’ Association,’ issued a cost study that included results of a survey of counties requesting cost data on, among other things, “[o]perational costs of . . . transportation associated with maintaining state inmates” in county facilities.'° Survey instructions stated that “[a] reasonable proportion of transportation costs that relate to transportation of inmates to the ADC may be included” in the responding county’s list of costs."

3 See Act 30 of 1933 (codified as amended at A.C.A. § 12-27-113(d)(1) (Repl. 2009)). The provision now reads: “It shall be the duty of [ADC] to transport all inmates committed to [ADC] to their respective institutions.”

4 Act 50 of 1968 (1" Ex. Sess.) (codified as re-enacted in Act 549 of 1993 at A.C.A. § 12-27-113(d)(3)).

5 See Act 737 of 1981 (see A.C.A. § 12-27-114(a)(1)(A)(i) for current law),

° See Arkansas Division of Legislative Audit, Special Report on Arkansas Department of Correction Prisoner Care Reimbursements | (2002).

” See id. at iii, 1, and 3; see also Arkansas Department of Correction, Inmate Cost Study 3 (2001).

• See Act 1672 of 2001,

” See Arkansas Department of Correction, Jnmate Cost Study 6 (2001).

"Id.

'' Id. at appendix A3, p. 2.

The Honorable Ray Hobbs

Director, Arkansas Department of Correction
Opinion No. 2013-052

Page 3

In 2003 — in the legislative session next following the cost study’s completion — the General Assembly enacted a bill declaring that “[t]he reimbursement rate shall include the county’s cost of transporting [back-up] inmates to [ADC].”"”

DISCUSSION

In my opinion, the sheriff is responsible for taking a back-up inmate to ADC." Since 1991, the reimbursement paid to a county for holding a back-up inmate has been determined by multiplying the number of days the person is held by a per diem rate.'* The General Assembly in 2003 surely was aware of that fact, particularly given the attention the issue received in 2001-2002, including the General Assembly’s own 2001 directive to ADC to determine the counties’ “actual daily costs” of holding state inmates.'> The General Assembly knew, in other words, that each county received exactly the same amount per back-up- inmate day.'®

The law states that the “rate shall include the county’s cost of transporting ... .” The meaning is clear: under the 2003 law the reimbursement paid to a county is deemed to include transportation costs, in every case. While the 2003 law does not

'2 Act 370 of 2003 (codified at A.C.A. § 12-27-114(a)(1)(A(ii)).

'3 In May 2013, a circuit court came to a different conclusion, ruling on an ex parte motion in a criminal case that the 1933 law requires ADC to transport all persons committed to ADC; that the 2003 law concerning the reimbursement rate and a county’s transportation costs applies only when a sheriff exercises his discretion under the 1968 law to immediately transport a prisoner; and that the 2003 law “does not shift the duty to transport ADC prisoners” from ADC to the sheriff. State v. Stacy, No. CR 2012-95ED (Carroll County Circuit Court, Modified Transport Order, May 7, 2013). For the reasons stated in the text accompanying this note, I respectfully disagree with the Court’s conclusions.

"4 See, e.g, Arkansas Division of Legislative Audit, Special Report on Arkansas Department of Correction Prisoner Care Reimbursements 1 (2002); Arkansas Department of Correction, 20/2-20/3 County Jail Reimbursement Summary.

'S Act 1672 of 2001 (emphasis added).

'© While the law does not expressly require the reimbursement rate to be a per diem rate, it clearly contemplates as much. See, e.g., A.C.A. § 12-27-114(b)()) (invoice relating to back-up inmate, prepared by ADC, “shall reflect the number of days an inmate was in the county jail in an awaiting-bed-space status”); A.C.A. § 12-27-114(b)(2) (sheriff “to certify the actual number of days the state inmates were physically housed in the county jail”); A.C.A. § 12-27-114(b)(4) (sheriff to retain documents “to confirm the number of days each inmate was housed in the county jail”). No law requires or expressly permits considering actual expenses incurred or anything at all except the number of back-up-inmate days.

The Honorable Ray Hobbs

Director, Arkansas Department of Correction
Opinion No. 2013-052

Page 4

make an express exception to the 1933 general rule, it does so impliedly by requiring that the counties be paid for taking back-up inmates to ADC. In my opinion, it follows from this payment scheme that counties are responsible for taking back-up inmates from the county jail to ADC once ADC bed space is available.

Assistant Attorney General J. M. Barker prepared this opinion, which I approve.

Sincerely,

TUSTIN McDANIEL
Attorney General

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