Could an Arkansas county sheriff house local prisoners in an out-of-state jail when the county had no working jail?

Plain-English summary

In 2013, Arkansas Attorney General Dustin McDaniel concluded that a county sheriff could not send local prisoners to an out-of-state jail merely because the county had no operating jail. The governing statute authorized placement in a jail in another county "located in this state," with the receiving sheriff's consent.

The AG treated the statute's express reference to Arkansas counties as excluding jails outside Arkansas. He also noted that the General Assembly could impose duties on a receiving Arkansas sheriff but had no power to impose those duties on an out-of-state sheriff.

The opinion was limited to the county-jail situation presented. It acknowledged that other statutes or constitutional considerations could permit people in government custody to be taken outside Arkansas in different circumstances.

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.

For county sheriffs and jail administrators in 2013

The opinion read A.C.A, § 12-41-509(a)(1) as allowing a sheriff with no adequate county jail to use a consenting jail in another Arkansas county, not a jail across the state line.

For county officials in 2013

The requested out-of-state placement was outside the authority the AG found in the county-jail statute. Because the first question was answered no, the opinion did not address what contract or operational issues such a placement would raise.

Common questions

Q: Could a sheriff use another Arkansas county's jail?
A: Yes, under the statute quoted in the opinion, if the home county had no jail or an insufficient jail and the other county's sheriff consented.

Q: Why did the AG reject an out-of-state jail placement?
A: The statute expressly referred to another county "located in this state." The opinion read that wording to exclude out-of-state facilities.

Q: Did the opinion say no Arkansas prisoner could ever leave the state? A: No. It identified other circumstances, including interstate corrections arrangements and medical needs, that were outside the narrow question presented.

Background and statutory framework

The Arkansas Constitution did not itself specify the sheriff's powers and duties, so the opinion looked to authority granted by the General Assembly. A.C.A, § 12-41-509(a)(1) directly addressed counties without an adequate jail and limited the receiving facility to another county in Arkansas.

The AG applied the statutory principle that expressly naming one category can imply exclusion of another. The opinion also distinguished an 1884 case involving placement in the wrong Arkansas county because the receiving sheriff in that case was still subject to Arkansas law.

Citations and references

Statutes:

• A.C.A, § 12-41-509(a)(1)
• A.C.A. § 12-49-102
• A.C.A. § 9-29-201

Cases:

• MacSteel Div. of Quanex v. Arkansas Oklahoma Gas Corp., 363 Ark. 22, 31, 210 S.W.3d 878 (2005)
• Cain v. Woodruff Cnty., 89 Ark. 456, 117 S.W. 768 (1909)
• Hart v. Howard Cnty., 44 Ark. 560, 561, 1884 WL 977 (1884)

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. 2013-058

August 29, 2013

The Honorable Chris Richey

State Representative

Post Office Box 2356

West Helena, Arkansas 72390-0356

Dear Representative Richey:

This is my opinion on your question whether the sheriff of a county with no operating jail may “transport prisoners to out of state jail facilities, where they can be held until a disposition has been reached in their respective criminal proceedings.”

. . . 1
In my opinion, the answer to your question is “no.”

Because the Arkansas Constitution does not specify the sheriff's powers and duties, they are up to the General Assembly to specify.” A statute addresses precisely the facts underlying your question, providing that “where there is no jail in his or her county or the jail of the county is insufficient, [the sheriff] may commit any person in his or her custody . . . to a jail in some other county located in this state, provided the sheriff of the other county consents. . . .”°

' My opinion is limited to the question posed. The law provides that persons in state or local government custody may be taken outside the state in various other circumstances. See, e.g. A.C.A. § 9-29-201 (Repl. 2009, as amended by Act 751 of 2013) (Interstate Compact on the Placement of Children, under which child adjudicated delinquent may be placed in out-of-state institution); A.C.A. § 12-49-102 (Repl. 2009) (Interstate Corrections Compact, which authorizes states — but not local governments — to contract to confine inmates in other states); Op. Att’y Gen. 95-407 (constitutional considcrations may require taking inmate outside state for medical treatment).

• Cain v. Woodruff Cnty., 89 Ark. 456, 117 S.W. 768 (1909); see Ark. Const. art. 7, § 46 (each county to
  elect a sheriff, who shall be ex officio collector of taxes unless otherwise provided by law).

7 A.C.A, § 12-41-509(a)(1) (Repl. 2009) (emphasis added).
323 CENTER STREET, SUITE 200 * LITTLE Rock, ARKANSAS 72201

TELEPHONE (501) 682-2007 « Fax (501) 682-8084
INTERNET WEBSITE * http://www.ag.state.ar.us/

The Honorable Chris Richey
State Representative
Opinion No. 2013-058

Page 2

“The phrase expressio unius est exclusio alterius is a fundamental principle of statutory construction that the express designation of one thing may properly be construed to mean the exclusion of another.” MacSteel Div. of Quanex v. Arkansas Oklahoma Gas Corp., 363 Ark. 22, 31, 210 S.W.3d 878 (2005). Here, I take the express designation of jails in counties “located in this state” to mean the exclusion of jails located outside the state. It is my opinion, then, that a sheriff may not take a person described in your question to be held in an out-of-state jail.

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

Sincerely,

• The statute once allowed a sheriff to commit a prisoner to the “nearest jail in some other county in the
  same circuit.” Mansfield’s Digest § 3890. The Arkansas Supreme Court, characterizing that limitation as “directory merely,” held Howard County liable for medical expenses of a prisoner committed by the Howard County Sheriff to jail in Hempstead County, a county not in the same circuit as Howard County. Hart v. Howard Cnty., 44 Ark. 560, 561, 1884 WL 977 (1884). The Court in effect blessed prisoner placements with Arkansas counties that were not specified in the statute at the time. One might argue that Hart means that the current limitation (“in this state”) is also merely directory and therefore does not prohibit a sheriff from placing a prisoner in a county not specified in the current statute — all of which are outside the state because the statute now contemplates placement with amy consenting Arkansas county. Although there can be no assurance of the outcome of any given case, I do not believe the argument would prevail. In Hart, a strict reading of the statute would have excused Howard County from paying the prisoner’s medical expenses — expenses for which it otherwise clearly would have been responsible under the law — merely because the “wrong” county accepted the prisoner at the Howard County Sheriff's request. Note that the statute imposes, as it did in 1884, certain obligations on the receiving sheriff. See A.C.A, § 12-41-509(a)(2), (c)(2); and Mansfield’s Digest §§ 3890, 3893 (receiving sheriff to receive, safely keep, and deliver the prisoner). The Arkansas General Assembly has no power to impose duties on an out- of-state sheriff. So a court urged to follow Hart with respect to the current statute surely would take into account the fact that the receiving out-of-state sheriff would not be bound by the statute, a fact not complicating the Hart Court’s decision as the Hempstead County Sheriff was so bound.