Can two Arkansas counties join together to build and operate a single jail located in only one of the counties?

Plain-English summary

Two Arkansas counties wanted to pool resources and build one jail to serve both. State Representative Jon Eubanks asked AG Dustin McDaniel two questions: could the quorum court of the county that would not house the jail authorize the project, and if not, could the legislature step in?

The AG answered that the first question is generally yes, which renders the second moot. State law contains multiple authorities for creating regional jail facilities by agreement among counties:

• A.C.A. § 12-41-701 et seq. (enacted under Act 918 of 1983) defines "jail" to include a facility constructed and operated under a cooperative agreement among two or more municipalities, counties, or public instrumentalities. Section 703 sets up the cooperative framework.
• A.C.A. § 12-41-505 (the booking and administration fee) was previously interpreted in Op. Att'y Gen. 2007-304 to authorize use of fees for "the maintenance, operation, and capital expenditures of a county jail or regional detention facility."
• A.C.A. §§ 25-20-101 to -108 (the Interlocal Cooperation Act, Act 430 of 1967) supplies the general statutory framework for interlocal agreements.
• A.C.A. §§ 12-50-101 to -110 (the Corrections Cooperative Endeavors and Private Management Act, Act 427 of 1987) authorizes cooperative endeavors for financing, constructing, acquiring, and operating prison facilities.
• A.C.A. § 22-3-1225(c) (part of the Public Facilities Finance Act of 1983) addresses Prison Construction Trust Fund use for regional jail facilities operated jointly by cities, counties, or regional jail commissions.

A regional jail built under these authorities will necessarily lie outside the borders of at least one participating county. That conflicts on its face with A.C.A. § 14-19-108(a), which requires that "a good and sufficient courthouse and jail" be erected "in each county, at its established seat of justice." The AG reconciled the apparent conflict by recognizing two rules of statutory construction: where two statutes conflict and cannot be harmonized, the later in time controls (State v. Lawrence), and seemingly contradictory provisions must be reconciled where practicable (Ragland v. Allen Transformer Co.; Gilbert v. Gilbert Timber Co.). The original "jail in each county" requirement traces to Rev. Stat., ch. 36, § 1 (1838); the regional-facility authorities are all of relatively recent origin. The AG concluded that the later regional-facility authorities qualify § 14-19-108's categorical requirement. The older statute remains effective only for counties that have not arranged for detention of their prisoners outside their boundaries by agreement.

The AG noted a related historical curiosity: A.C.A. § 12-41-509(a)(1), codified from Rev. Stat., ch. 81, § 17 (1838), already contemplated that some counties might have no jail at all, authorizing a county sheriff to commit prisoners to another county's jail with that county's sheriff's consent. So even in 1838, the absoluteness of the "jail in each county" rule was not really absolute. A.C.A. § 12-41-503(d) similarly speaks of counties that "share a common jail" and may share operational costs by agreement.

The result: two counties can lawfully build one jail to serve both. The shared facility counts as a "county jail" for purposes of housing each participating county's prisoners.

Currency note

This opinion was issued in 2014. 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.

Common questions

How does a regional jail get created in Arkansas at the time of this opinion?
By interlocal cooperation agreement under A.C.A. §§ 25-20-101 et seq., supplemented by the specific authorities in A.C.A. § 12-41-701 et seq. and A.C.A. § 12-50-101 et seq. The participating counties' quorum courts approve the agreement, which defines the jail's location, governance, cost allocation, and prisoner-housing arrangements.

What about the requirement to build a jail in each county?
A.C.A. § 14-19-108(a) still says a jail "shall be erected" in each county at its seat of justice. The AG treats that requirement as qualified by the regional-facility statutes. A county that joins a regional jail through agreement is treated as having satisfied its jail obligation through that arrangement.

Can a county opt out of building its own jail without a regional agreement?
The opinion doesn't authorize that, but it does acknowledge A.C.A. § 12-41-509(a)(1) allows a county sheriff to send prisoners to another county's jail "where there is no jail in his or her county," subject to the other sheriff's consent. The AG also references A.C.A. § 12-41-503(d) on counties that "share a common jail."

Who controls a regional jail?
The interlocal agreement sets governance. Options include a public facilities board (defined as a "public instrumentality" under § 12-41-701(10)), a regional jail commission, or shared operational arrangements among the participating counties' sheriffs.

What happens to the booking fee revenue under A.C.A. § 12-41-505?
Under § 12-41-505(b)(3), it must be devoted exclusively to "the maintenance, operation, and capital expenditures of a county jail or regional detention facility," so a participating county's fee revenue can support the regional jail.

Could the legislature have to step in if the AG had answered "no"?
Eubanks's second question asked exactly that. The AG mooted the question by finding existing statutory authority sufficient. If the AG had found no authority, legislative action would have been required to create that authority.

Background and statutory framework

The opinion sits at the intersection of three eras of Arkansas jail law:

• The 1838 baseline. Revised Statutes ch. 36 § 1 required a courthouse and jail in each county at its seat of justice. That core requirement was codified as A.C.A. § 14-19-108. Revised Statutes ch. 81 § 17 (codified at A.C.A. § 12-41-509(a)(1)) acknowledged that some counties might not have jails and authorized cross-county prisoner commitments.

• The interlocal cooperation era. Act 430 of 1967 created the Interlocal Cooperation Act, A.C.A. §§ 25-20-101 et seq., authorizing political subdivisions to perform jointly by agreement what they could perform individually.

• The modern regional-facility statutes. Act 918 of 1983 created A.C.A. § 12-41-701 et seq. (cooperative-agreement jails). The Public Facilities Finance Act of 1983 created A.C.A. §§ 22-3-1201 to -1226 (Prison Construction Trust Fund). The Corrections Cooperative Endeavors and Private Management Act (Act 427 of 1987) created A.C.A. §§ 12-50-101 to -110.

The AG read this layered scheme as authorizing regional jails and treated § 14-19-108 as qualified rather than repealed by the later statutes, applying both Ragland v. Allen Transformer Co. (reconcile where practicable) and State v. Lawrence (later statute controls when conflict cannot be reconciled).

Citations

• A.C.A. § 14-19-108 (Repl. 2013) (jail required in each county; modifiable location)
• A.C.A. § 12-41-505(b)(3) (Repl. 2009) (booking fee dedicated to jail operations)
• A.C.A. § 12-41-503(d) (counties sharing a common jail)
• A.C.A. § 12-41-509(a)(1) (Repl. 2009) (cross-county commitment when no jail in own county)
• A.C.A. § 12-41-701 et seq. (Repl. 2009) (cooperative jail agreements)
• A.C.A. § 12-41-701(6) (definition of jail including cooperative facilities)
• A.C.A. § 12-41-703 (cooperative framework)
• A.C.A. §§ 12-50-101 to -110 (Corrections Cooperative Endeavors and Private Management Act)
• A.C.A. § 22-3-1225(c) (Repl. 2004) (Prison Construction Trust Fund for regional facilities)
• A.C.A. §§ 25-20-101 to -108 (Interlocal Cooperation Act)
• Ragland v. Allen Transformer Co., 292 Ark. 601, 740 S.W.2d 13 (1987) (reconcile statutes where practicable)
• Gilbert v. Gilbert Timber Co., 19 Ark. App. 93, 717 S.W.2d 220 (1986)
• State v. Lawrence, 246 Ark. 644, 439 S.W.2d 819 (1969) (later statute controls when irreconcilable)
• Op. Att'y Gen. 2007-304 (terms "county jail" and "regional detention facility")
• Op. Att'y Gen. 2004-302 (regional jail facilities through interlocal agreement)

Source

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

Original opinion text

Opinion No. 2014-073
August 8, 2014

The Honorable Jon S. Eubanks
State Representative
2543 Greasy Valley Road
Paris, Arkansas 72855-5874

Dear Representative Eubanks:

You have requested my opinion on the following questions concerning jail construction:

1. May the quorum court of the county in which the jail will not be built authorize the building of a county jail outside the county's boundary?

2. If not, may the state legislature approve by enacting such a measure?

You preface these questions with the statement that "[t]wo counties wish to build one jail to serve both counties."

RESPONSE

I assume from your preliminary statement that these questions contemplate the joint creation of one jail to serve the two counties. According to my review of state law, authority currently exists for the creation of jail facilities by agreement between or among different counties. The jail in that case would be a "county jail" of each county, in the sense of housing each county's respective prisoners. But it obviously would be located beyond one of the county's boundaries. My research indicates that an arrangement of this sort is contemplated under current state law. Your second question is consequently moot.

I previously identified some of the relevant statutes in this regard in response to a question concerning the "booking and administration fee" under A.C.A. § 12-41-505. As I noted in Op. Att'y Gen. 2007-304, this fee must be devoted exclusively to "the maintenance, operation, and capital expenditures of a county jail or regional detention facility." The opinion is instructive in addressing the terms "county jail" and "regional detention facility":

The term "county jail" in my opinion refers to a facility that is maintained or operated by the county, either through the sheriff or a designee. See A.C.A. § 12-41-503 (Supp. 2007) (regarding management of local jail populations). See also A.C.A. § 12-41-506 (Repl. 2003) (addressing expenses of municipal prisoners held in county jails). Regarding a "regional detention facility," I believe this term reasonably has reference to a facility that is created by agreement among or between different political subdivisions, or among or between political subdivisions and the state or a prison contractor. See Op. Att'y Gen. 2004-302 (noting that regional jail facilities can be created through interlocal agreement pursuant to A.C.A. §§ 25-20-101 - 108); A.C.A. § 12-50-101 - 110 (Repl. 2003) (authorizing cooperative endeavors for financing, constructing, acquiring, and operating prison facilities). See also A.C.A. § 22-3-1225(c) (Repl. 2004), part of the "Public Facilities Finance Act of 1983," A.C.A. §§ 22-3-1201 - 1226 (Repl. 2004) (providing for use of funds in the Prison Construction Trust Fund to construct and equip, inter alia, "regional jail facilities operated jointly by cities, counties, or regional jail commissions.")

As this excerpt makes clear, there is authority in state law for the creation of regional jail facilities by agreement between or among different counties. Another body of law not mentioned in this excerpt, A.C.A. § 12-41-701 et seq. (Repl. 2009), also authorizes the construction and operation of a jail under a cooperative agreement between, inter alia, two or more counties. See id. at -701(6)(B) and -703.

Jail facilities created by agreement pursuant to the above authority obviously will be located beyond one of the participating county's boundaries. While this seems beyond dispute, it prompts consideration of the requirement under another statute that a jail must be constructed in each county and at the county seat (absent a vote to locate it outside the county seat):

(a) There shall be erected in each county, at its established seat of justice, a good and sufficient courthouse and jail.

(b) The quorum court may, by a majority vote, or by referral to a vote of the people, determine the location of the jail facility at some location other than the established seat of justice.

It is difficult to reconcile this statute with the above authorization of regional jail facilities. As noted above, a regional facility will of necessity be constructed outside one of the participating counties. This would seem contrary to A.C.A. § 14-19-108(a), at least to the extent this statute means a jail must be built by a county within the boundaries of that county. Under established rules of statutory construction, seemingly contradictory provisions must be reconciled to the extent practicable. Where two statutes conflict and cannot be reconciled, however, the later one in time will control. Based on these principles, I conclude that the provisions authorizing regional jail facilities qualify A.C.A. § 14-19-108's categorical requirement that a jail be built in each county. The requirement of a jail in each county was enacted in 1838, whereas the authorization of regional facilities by agreement is of relatively recent origin.

This is not to say that A.C.A. § 14-19-108 has been repealed by these later provisions authorizing the creation of jail facilities by agreement between counties. In my opinion, section 14-19-108 remains effective for any county that has not arranged for the detention of its prisoners outside its boundaries pursuant to agreement.

In sum, for the reasons stated above, it is my opinion in response to your first question that authority currently exists for the creation of a jail facility by agreement between or among counties. The facility in that case will be located beyond one of the county's boundaries. Assuming, therefore, that your first question contemplates such joint creation of one jail to serve the two counties, the answer is generally "yes," in my opinion. Your second question is rendered moot by this response.

Deputy Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.

Attorney General