Can the Arkansas Department of Correction pay an out-of-state facility for housing a backup inmate using the County Jail Reimbursement Fund?

Plain-English summary

Benny Magness, the chairman of the Arkansas Board of Corrections, asked a narrow but practical question: when an Arkansas county sends one of its backup inmates (a person sentenced to ADC time but stuck in a county jail because there is no ADC bed space) to an out-of-state correctional facility, can the Arkansas Department of Correction pay that out-of-state facility from the County Jail Reimbursement Fund at the county's direction?

Attorney General Leslie Rutledge said no. The statutes that create the County Jail Reimbursement Fund and govern its disbursement do not allow it. The fund exists to reimburse Arkansas counties for the days a backup inmate is physically housed in that county's jail, and the disbursement procedure requires the sheriff to certify physical housing in the county jail. There is no legal channel for ADC to redirect those funds to an out-of-state facility, and a separate Arkansas statute restricting where a sheriff can place an overflow inmate reinforces the conclusion.

Currency note

This opinion was issued in 2016. 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 AG read the statutes

The Fund is single-purpose. Ark. Code Ann. § 19-5-1045 establishes the County Jail Reimbursement Fund. The statute says the fund "shall be used by [ADC] for reimbursing counties housing prisoners sentenced to [ADC]." The AG read that language as exhaustive. It does not authorize payments to other entities or for other purposes.

The disbursement procedure assumes a county jail. Ark. Code Ann. § 12-27-114 sets up the procedures for ADC to make payments from the Fund. Each month, ADC prepares an invoice listing inmates on the county jail backup list "and reflect[ing] the number of days a state inmate was in the county jail in an awaiting-bed-space status." ADC sends the invoice to the sheriff, who has to certify "the actual number of days the state inmates were physically housed in the county jail." The sheriff returns the certified invoices to ADC for payment and keeps records of the days "each state inmate was physically housed in the county jail."

The AG flagged the addition of the word "physically" in 2015 as significant evidence that the legislature understood and reaffirmed the limit. A sheriff cannot certify that an inmate was physically housed in his county jail when the inmate was actually in another state.

A separate statute restricts where a sheriff can place an overflow inmate. Ark. Code Ann. § 12-41-509(a)(1) limits a sheriff's options when his county jail is full or unavailable to "a jail in some other county located in this state." Citing Opinion 2013-058, the AG noted that her office had recently concluded this language means a sheriff cannot send prisoners outside Arkansas at all. That holding compounds the problem: even if ADC could somehow be authorized to pay an out-of-state facility, the transfer in the first place would be questionable under state law.

What the opinion did and did not decide

This opinion answered one specific question: can ADC pay the out-of-state facility from the CJR Fund? The answer is no.

The opinion did not address:

• Whether the county itself could pay the out-of-state facility from county funds.
• Whether the inmate transfer itself was lawful under § 12-41-509.
• Whether the inmate transfer might be authorized under some interstate corrections compact or federal authority not mentioned in the request.

A county facing the hypothetical scenario would need separate advice on those questions.

Common questions

Why does it matter where an inmate is physically housed?
The County Jail Reimbursement Fund is designed to compensate Arkansas counties for the operational cost of holding state inmates while ADC has no bed for them. The "physically housed" requirement is what ties the reimbursement to the county's actual cost. If the inmate is in Mississippi, the Arkansas county is not bearing the daily operational cost the Fund is meant to cover.

Could the General Assembly change this?
Yes. The opinion turns on statutory language the legislature chose. If lawmakers wanted ADC to be able to reimburse out-of-state facilities under specified conditions, they could amend the relevant statutes. Until then, the AG's reading bars it.

What happens when a county jail genuinely runs out of room?
Under the AG's reading of § 12-41-509(a)(1) and Opinion 2013-058, the sheriff's options are limited to placing inmates in other Arkansas county jails. That puts pressure on the legislature, ADC, and county jails to coordinate available capacity in-state.

Source

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

Original opinion text

Opinion No. 2015-123
February 12, 2016
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Mr. Benny W. Magness, Chairman
Arkansas Board of Corrections
P. O. Box 20550
White Hall, AR 71612-0550
Dear Mr. Magness:
This is my opinion on your question whether the Arkansas Department of Correction ("ADC") may pay an out-of-state correctional facility for housing a back-up inmate.

I use the term "back-up inmate" to describe a person sentenced to serve a term of imprisonment at ADC but for whom ADC has no bed space.

Normally, back-up inmates are held in county jails until ADC bed space is available, and ADC reimburses the counties from the County Jail Reimbursement Fund (the "CJR Fund") for holding them.

You describe a hypothetical situation, however, in which a county transfers an inmate to an out-of-state correctional facility pending availability of ADC bed space.

You ask whether ADC may, at the county's direction, pay the out-of-state facility from the CJR Fund for housing the back-up inmate.

RESPONSE

In my opinion, the answer to your question is "no."

DISCUSSION

The statute establishing the CJR Fund provides that it "shall be used by [ADC] for reimbursing counties housing prisoners sentenced to [ADC]." It does not provide for ADC to make payments from the fund for any other purpose or to any other person or entity.

Another statute establishes procedures for ADC payments from the CJR fund. It requires ADC to prepare a monthly invoice listing inmates on the county jail back-up list for the prior month and "reflect[ing] the number of days a state inmate was in the county jail in an awaiting-bed-space status." It also requires ADC to forward the invoice to the sheriff "to certify the actual number of days the state inmates were physically housed in the county jail." Finally, it requires the sheriff to return "the certified invoices" to ADC for payment, and to keep records regarding "the number of days each state inmate was physically housed in the county jail." The word "physically" was added to this subsection in 2015, which in my view constitutes evidence of the General Assembly's recent understanding and purpose with respect to the issue.

In my view, existing law simply does not contemplate or permit the arrangement you ask about. The law dictates a single ADC use of the CJR Fund, and establishes procedures for payments that cannot accommodate the arrangement you ask about. For example, the law requires the sheriff to certify that the inmate was "physically housed in the county jail." Obviously, the sheriff cannot so certify with respect to an inmate held elsewhere. There being no provision in the law for ADC payment from the CJR Fund absent the certification, there can be no payment.

My conclusion is reinforced by the fact that the law specifying a sheriff's options when his county jail is insufficient or nonexistent permits him to place an inmate only in "a jail in some other county located in this state ...." This office recently concluded that that provision means a sheriff may not send prisoners to be held outside the state. Op. Att'y Gen. 2013-058.

In sum, it is my opinion that ADC may not pay an out-of-state facility from the CJR Fund for housing a back-up inmate.

Sincerely,
LESLIE RUTLEDGE
Attorney General