Must Arkansas DOC reimburse a county for an inmate filing fee the county neither paid nor became legally obligated to pay?

Plain-English summary

The Arkansas Secretary of Corrections asked whether DOC must reimburse a county for an inmate's filing fee when the county has no out-of-pocket expense, including a fee a court waives after granting in forma pauperis status. The Attorney General answered no on the facts presented. A.C.A. § 12-27-115(a) entitles a county to reimbursement for expenses it has "incurred" because of "any legal proceedings involved or occasioned by any inmate of a penal institution." A county that neither paid a filing fee nor became legally obligated to pay it has incurred no expense for that fee.

The opinion assumes for its analysis that filing fees might count as "expenses." It does not settle that question in general. It notes that A.C.A. §§ 16-68-603 and 16-68-604 can permit an incarcerated person to proceed without payment of fees and costs, and neither provision makes the county pay the filing fees. If a county is legally obligated to pay court filing fees, including partial payments under A.C.A. § 16-68-601, DOC would reimburse those incurred expenses.

What this means for you

County clerks and county attorneys

For a reimbursement claim under § 12-27-115(a), identify whether the county paid the filing fee or became legally obligated to pay it. The opinion says a fee the county neither paid nor owed is not an expense it incurred. A court's authorization for an inmate to proceed without payment under §§ 16-68-603 and 16-68-604 does not itself impose a payment obligation on the county.

DOC finance staff

The controlling fact in the request was the county's lack of payment or legal obligation. Apply the opinion's incurred-expense reasoning to that fact when reviewing a county's filing-fee reimbursement claim. The opinion also recognizes reimbursement where the county is legally obligated to pay, including partial payments under § 16-68-601.

Incarcerated litigants and their counsel

This opinion addresses DOC reimbursement to counties. It cites the provisions allowing a court, in certain circumstances, to authorize an incarcerated person to proceed without paying fees and costs. It does not decide an inmate's entitlement to that authorization in a particular case.

Common questions

Does DOC reimburse a county for an inmate filing fee the county never paid and never owed? No. Even assuming the fee is an expense within § 12-27-115(a), the county did not incur it.

Does the opinion decide that filing fees are always reimbursable expenses? No. The Attorney General assumed that point for the analysis and resolved the questions on whether the county incurred an expense.

What if the county is legally obligated to pay a filing fee? The opinion says DOC would need to reimburse payments that the county is legally obligated to make, including partial payments under § 16-68-601.

Does a court's authorization to proceed without payment make the county owe the fee? Not under the two provisions the opinion discusses, §§ 16-68-603 and 16-68-604. The Attorney General says neither puts the filing-fee obligation on the county.

Background and statutory framework

A.C.A. § 12-27-115(a) governs reimbursement to counties for expenses incurred because of "any legal proceedings involved or occasioned by any inmate of a penal institution." The opinion relies on the ordinary meaning of "incur": "to suffer or bring on oneself (a liability or expense)." Its fourth footnote explains reimbursement as repayment and asks what could be repaid if the county made no payment and had no legal obligation to make one.

A.C.A. §§ 16-68-603 and 16-68-604 concern proceedings by incarcerated people without payment of fees and costs in certain circumstances. The opinion cites Ark. R. Civ. P. 54(d) for the point that fees and costs typically include filing fees. It contrasts those provisions with a county's legal obligation to pay, including partial payments under § 16-68-601.

Citations

• A.C.A. § 12-27-115(a)
• A.C.A. § 16-68-601
• A.C.A. § 16-68-603
• A.C.A. § 16-68-604
• Ark. R. Civ. P. 54(d)
• BLACK’S LAW DICTIONARY 917 (11th ed. 2019)
• BLACK’S LAW DICTIONARY 1539 (11th ed. 2019)

Source

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

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.

1. 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?

2. 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.” The Honorable Joe Profiri Secretary of Corrections Opinion No. 2023-094 Page 2

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).”1 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.2 Such “fees and costs” typically include filing fees.3 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.”4 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

1
BLACK’S LAW DICTIONARY 917 (11th ed. 2019); see also THE AMERICAN HERITAGE DICTIONARY 891 (5th ed. 2011) (“To become liable or subject to as a result of one’s actions.”). 2 See A.C.A. § 16-68-603 (“Nothing in this subchapter should be construed to prohibit an incarcerated person from filing his or her civil action or proceeding if the incarcerated person is found to be indigent….”); id. § 16-68-604(a) (“[Arkansas courts] may authorize the commencement…any…proceeding, without payment of fees and costs, by an incarcerated person who makes an affidavit that he or she is unable to pay….”). 3 E.g., ARK. R. CIV. P. 54(d).
4
To reimburse is to “repay,” BLACK’S LAW DICTIONARY 1539 (11th ed. 2019), and what is there to be repaid if no payment was made or no payment was legally obligated to be made.