When an inmate files a civil suit and the court waives the filing fee under in forma pauperis, does the Department of Corrections still owe the county a reimbursement for that fee?
Plain-English summary
Secretary of Corrections Joe Profiri asked whether the Department of Corrections has to reimburse a county for an inmate's court filing fee when the county never actually paid the fee. The scenario typically arises when an inmate files a civil action, the court grants in forma pauperis (IFP) status, and the filing fee is waived. The county clerk's office records the waived fee on its books and then submits an invoice to DOC for reimbursement.
The AG's answer is no. The relevant statute, A.C.A. § 12-27-115(a), entitles a county to reimbursement only for expenses it has "incurred" because of "any legal proceedings involved or occasioned by any inmate of a penal institution." The dispositive word is "incurred." Black's Law Dictionary defines "incur" as "to suffer or bring on oneself (a liability or expense)." If the county never paid the fee and was never legally obligated to pay it, the county did not "incur" anything.
Inmates with IFP status proceed under A.C.A. §§ 16-68-603 and 16-68-604, which allow indigent inmates to continue legal proceedings "without payment of fees and costs." Neither statute imposes any obligation on the county to pay the fees on the inmate's behalf. So when a court waives an inmate's filing fee under IFP, no one is paying it, including the county.
The AG flags one important contrast: when a county is legally obligated to pay court filing fees, even partial payments under A.C.A. § 16-68-601, the DOC does owe reimbursement for those payments as actually incurred expenses. The opinion does not eliminate § 12-27-115 reimbursement; it simply scopes it to expenses the county actually paid or was legally bound to pay.
The AG also frames this as an "even if we assume" answer. The opinion does not definitively decide whether filing fees fit within the statutory term "expenses" at all. It instead reasons that even if filing fees count as expenses, this scenario fails on the "incurred" prong because the county neither paid the fee nor was legally obligated to do so.
What this means for you
County clerks and county attorneys
Stop sending DOC reimbursement invoices for filing fees that were waived under IFP. Per the AG, those fees were never "incurred" by the county and DOC is not required to reimburse them. Sending the invoice anyway does not change the legal answer and creates an audit trail of disputed claims.
If the county is statutorily obligated to pay something, like partial payments under A.C.A. § 16-68-601, that is a different situation. Those are reimbursable to the county as actually incurred expenses. Track the difference in your billing process: paid or legally obligated equals reimbursable; waived by court equals not reimbursable.
County judges and finance officers
Adjust the county's revenue forecast if your county had been counting on DOC reimbursement for IFP-waived filing fees. The AG's reading removes that revenue line.
DOC finance staff
When evaluating county invoices under § 12-27-115, ask the county to identify which fees were actually paid (or legally obligated) versus which were waived under IFP. Reject invoices for waived fees consistent with this opinion.
Inmates and prisoner-rights attorneys
This opinion does not change your client's IFP rights. The statutes that allow indigent inmates to file civil actions without paying fees remain in force. The opinion only addresses who, if anyone, gets reimbursed for those waived fees, and the answer is no one.
If your client's filing fee is being treated as the county's "expense" and held against him in a setoff or recoupment, this opinion is useful to push back: a fee no one paid is not an expense anyone "incurred."
Common questions
What is in forma pauperis?
A court status that allows an indigent litigant to proceed without paying filing fees and costs. Arkansas IFP for inmates is governed by A.C.A. §§ 16-68-603 and 16-68-604. The court reviews the inmate's affidavit of indigency and may permit the proceeding without payment.
If the fee is waived, who actually pays it?
No one. The court's order waiving the fee means the fee is not collected from anyone. The county clerk's office handles the filing without receiving a fee. There is no third party (DOC, the inmate, or the county) on the hook.
Then why was the county sending invoices to DOC?
Some counties had been treating IFP-waived fees as a county "expense" because the county had to do the filing work without receiving the fee. The AG concludes that lost revenue is not the same as an incurred expense for purposes of § 12-27-115.
What if the inmate's IFP is partial, not total?
Under A.C.A. § 16-68-601, a court can order partial payment toward filing fees. If the county is legally obligated to advance any portion of those fees, that portion is reimbursable. If the inmate's partial payment goes directly to the clerk and the county is never on the hook, there is nothing for the county to be reimbursed.
Does this affect criminal cases?
No. The opinion addresses § 12-27-115, which deals with civil legal proceedings "involved or occasioned by" inmates. Criminal-case costs and fees are governed by separate statutes.
Can DOC voluntarily reimburse counties for waived fees?
The opinion answers a "must" question, not a "may" question. Whether DOC has discretion to make voluntary payments outside the statutory framework would be a different analysis under DOC's appropriation authority and procurement rules.
Background and statutory framework
A.C.A. § 12-27-115(a). Counties are entitled to reimbursement from DOC for "expenses" "incurred" because of "any legal proceedings involved or occasioned by any inmate of a penal institution."
A.C.A. § 16-68-603 & § 16-68-604. Authorize indigent inmates to file civil actions without payment of fees and costs upon court approval. Neither statute imposes an obligation on the county to pay those fees.
A.C.A. § 16-68-601. Allows for partial payments toward fees in certain circumstances. The AG flags this as a contrast: if the county is legally obligated under this section, those payments are reimbursable.
Ark. R. Civ. P. 54(d). Defines what counts as costs in Arkansas civil procedure (filing fees are typically included).
Statutory interpretation rule. The AG followed the plain-meaning approach: "incurred" means "to suffer or bring on oneself (a liability or expense)" per Black's Law Dictionary 11th ed. (2019). A fee that was waived by a court was not suffered, brought on, or paid by the county.
Citations
- A.C.A. § 12-27-115 (DOC reimbursement to counties for inmate legal proceedings)
- A.C.A. § 16-68-601 (partial payment of fees)
- A.C.A. § 16-68-603 (IFP for incarcerated litigants)
- A.C.A. § 16-68-604 (commencement without fees and costs)
- Ark. R. Civ. P. 54(d) (definition of costs)
- BLACK'S LAW DICTIONARY 917 (11th ed. 2019) (definition of "incur")
- THE AMERICAN HERITAGE DICTIONARY 891 (5th ed. 2011) (definition of "incur")
- BLACK'S LAW DICTIONARY 1539 (11th ed. 2019) (definition of "reimburse")
Source
Original opinion text
Opinion No. 2023-094
December 13, 2023
The Honorable Joe Profiri
Secretary of Corrections
Arkansas Department of Corrections
1302 Pike Avenue, Suite C
North Little Rock, Arkansas 72114
Dear Secretary Profiri:
I am writing in response to your request for my opinion on questions concerning whether inmate filing fees and court costs are an "expense" under A.C.A. § 12-27-115. You ask the following two questions, some of which I have paraphrased.
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Is a filing fee an "expense" for which the Department of Corrections ("DOC") must reimburse a county, even when the county did not incur any out-of-pocket expenses for the commencement of the inmate's legal action?
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If an inmate is granted In Forma Pauperis ("IFP") status, and the filing fee is waived by a court, is the DOC required to reimburse the county upon submission of an invoice for filing fees?
RESPONSE
Even if we assume that filing fees are an "expense" related to inmate legal proceedings, the county would only need to be reimbursed if it actually incurred an expense. But under the facts you have provided, the county has not incurred any expense and is, therefore, not eligible for reimbursement.
DISCUSSION
Under A.C.A. § 12-27-115(a), a county is entitled to reimbursement from the DOC only for a county's "expenses" "incurred" because of "any legal proceedings involved or occasioned by any inmate of a penal institution." The core questions then are (1) whether filing fees are an "expense" arising out of "any legal proceedings" and (2) whether filing fees, as presented here, are an "expense" that the county actually "incurred."
Even if one assumes that filings fees are "expenses" under the statute for which counties could be reimbursed, the county cannot seek reimbursement for an expense it has not actually "incurred." The word "incur" is most commonly understood to mean "to suffer or bring on oneself (a liability or expense)." Under A.C.A. §§ 16-68-603 and 16-68-604, an inmate may, if allowed by the court, continue his or her legal proceeding "without payment of fees and costs" in certain circumstances. Such "fees and costs" typically include filing fees. And neither § 16-68-603 nor § 16-68-604 thrusts upon counties the obligation to pay filing fees. Thus, it cannot be said that a county has actually "incurred" expenses for filing fees when it has not paid those filing fees or become legally obligated to pay those filing fees. Consequently, a county is not "entitled to reimbursement for such expenses." In contrast, when a county is legally obligated to pay court filing fees, even if partial payments under A.C.A. § 16-68-601, the DOC would then need to reimburse those payments as incurred expenses.
Assistant Attorney General William R. Olson prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General