MS 2020-07-D-Delgado-June-26-2020-Fees-for-Expungement 2020-06-26

Can a Mississippi municipal court charge a $50 filing fee for an expungement petition?

Short answer: No. The AG concluded that Miss. Code Ann. § 21-23-7(11) explicitly forbids any filing fee for bringing an action in municipal court, so a court could not charge $50 for filing an expungement petition by classifying it as 'any other item of court cost.' Additionally, when a case ends in acquittal or dismissal, Article 14 Section 261 of the Mississippi Constitution prevents the court from assessing any fines or fees against the defendant.

Disclaimer: This is an official Mississippi Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Mississippi attorney for advice on your specific situation.

Plain-English summary

Southaven Municipal Court was charging a $50 "any other item of court cost" fee when defendants filed expungement petitions. Judge Delgado asked the AG whether that practice was allowed under Miss. Code Ann. § 21-23-7(11), which lists permitted municipal-court costs. The AG said no, twice over.

First, § 21-23-7(11) itself ends with this sentence: "No filing fee or such cost shall be imposed for the bringing of an action in municipal court." That language unambiguously bars the court from charging any filing fee, regardless of how the fee is labeled. The court could not get around it by re-categorizing an expungement charge as an "any other item of court cost." Filing fees in municipal court were forbidden.

Second, when a defendant is acquitted or the case is dismissed (and statutes like § 99-15-26(5), § 99-19-71(4), and § 21-23-7(13) provide for or require expungement in those circumstances), Article 14 Section 261 of the Mississippi Constitution puts the cost of prosecution on the county, not on the defendant. The court could not assess any fines or fees against an acquitted or dismissed defendant.

The opinion was concrete and practical: Southaven had to stop charging the $50 fee on expungement petitions.

Currency note

This opinion was issued in 2020. 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.

Background and statutory framework

Mississippi municipal courts operate under Miss. Code Ann. § 21-23-7. Subsection (11) of that statute caps what these courts can charge in court costs. The cap is structured as a list of cost categories (sheriff's fees, jail fees, witness fees, and so forth), each with a dollar limit. The catch-all "any other item of court cost" caps at $50. Then comes the controlling sentence: "No filing fee or such cost shall be imposed for the bringing of an action in municipal court."

Southaven was applying the $50 catch-all to expungement petitions filed in cases that had already been adjudicated in municipal court. Procedurally, an expungement petition in Mississippi is filed in the same court that handled the underlying case. From the municipal court's perspective, the petition arrived as a new filing in the existing case file. The court characterized the new filing as triggering the $50 "any other item of court cost." The AG rejected the framing: § 21-23-7(11)'s prohibition on filing fees is absolute, and re-labeling the fee did not save it.

The opinion's second layer is constitutional. Article 14 Section 261 of the Mississippi Constitution provides: "The expenses of criminal prosecutions shall be borne by the county in which such prosecution shall be begun; and all fines and forfeitures shall be paid into the treasury of such county. Defendants, in cases of conviction, may be taxed with the costs." That last clause is determinative. Costs may be taxed only "in cases of conviction." When a defendant is acquitted or the case is dismissed, the county pays. Several Mississippi statutes (§ 99-15-26(5), § 99-19-71(4), and § 21-23-7(13)) provide for or require expungement in those acquittal or dismissal circumstances, so the constitutional rule was directly engaged. The court could not charge any fine or fee, and certainly not for the expungement filing the statute itself contemplated.

The AG framed this as rendering the second question moot, which is a polite way of saying the constitutional rule provides an independent reason the fee was barred.

Common questions

Q: What about expungement petitions in cases that did end in conviction?
A: The opinion did not separately discuss those, but § 21-23-7(11)'s "no filing fee" prohibition applies regardless of how the underlying case ended. The constitutional rule (county pays acquittals) addresses the second layer. The first layer (no filing fee) covers all expungement petitions in municipal court.

Q: Could the court charge for the expungement order itself, like a copy fee, instead of a filing fee?
A: The opinion did not address per-page copy fees or certified-copy fees, which are separate from filing fees. The AG's holding was specifically that the $50 catch-all could not be charged at filing.

Q: Did Southaven owe defendants a refund?
A: The opinion did not order a remedy. Whether amounts already collected had to be refunded would be a separate question, likely requiring a court action by an affected defendant or class.

Q: How is this different from a circuit-court expungement, which can have filing fees?
A: Circuit court is governed by different fee statutes. The opinion was specific to municipal court under § 21-23-7. Section 99-19-71 and other statutes govern circuit-court expungement procedure and fees.

Q: What if a city tries to charge for "administrative costs" instead of a filing fee?
A: The statute uses both terms: "No filing fee or such cost." Re-labeling a charge does not avoid the prohibition. The AG's reasoning on the catch-all category covered exactly this kind of relabeling.

Citations and references

Statutes:
- Miss. Code Ann. § 21-23-7(11) (Municipal court contempt power and cost caps)
- Miss. Code Ann. § 99-15-26(5) (Expungement after non-adjudication)
- Miss. Code Ann. § 99-19-71(4) (Expungement of arrest records)
- Miss. Code Ann. § 21-23-7(13) (Municipal court expungement provisions)

Constitution:
- Article 14, Section 261, Mississippi Constitution of 1890 (County bears prosecution costs; defendants taxed only on conviction)

Source

Original opinion text

June 26, 2020

Honorable David F. Delgado
Southaven Municipal Court Judge
8889 Northwest Drive
Southaven, Mississippi 38671

Re: Fees for Expungement

Dear Judge Delgado:

The Office of the Attorney General is in receipt of your request for the issuance of an official opinion.

Questions Presented

May a municipal court charge a filing fee for the expungement of criminal matters pursuant to Miss. Code Ann. Section 21-23-7(11), which empowers the municipal court to impose reasonable costs of court for "any other item of court cost" in the amount of fifty dollars ($50.00)?

If yes, may a municipal court charge this additional fee pursuant to Section 21-23-7(11) for an expungement to which a defendant is entitled by law, such as when a criminal case is dismissed or a defendant is acquitted?

Background Facts

It is our understanding, the Southaven Municipal Court assesses a fifty dollar ($50.00) filing fee, classified as "any other item of court cost" pursuant to 21-23-7(11), based upon the filing of a new petition (for expungement) in the same case.

Brief Response

The court may not assess a filing fee for an expungement or any filing before the court pursuant to Section 21-23-7(11). Thus, the municipal court may not impose a charge as "any other item of court cost" in the amount of fifty dollars ($50.00).

Applicable Law and Discussion

Section 21-23-7(11) states, in relevant part:

The municipal court shall have the power to impose punishment of a fine of not more than One Thousand Dollars ($1,000.00) or six (6) months imprisonment, or both, for contempt of court. The municipal court may have the power to impose reasonable costs of court, not in excess of the following:

Any other item of court cost $50.00

No filing fee or such cost shall be imposed for the bringing of an action in municipal court.

(Emphasis added). Filing fees are impermissible in municipal court. Accordingly, the court may not assess a fee for an expungement or any filing before the court by classifying it as "any other item of court cost."

Our response to your first question has rendered your second question moot. However, in criminal cases wherein the statute(s) require expungement based upon a defendant's acquittal or dismissal, the court may not assess any fines or fees to the defendant. Article 14 Section 261 of the Mississippi Constitution of 1890 states:

The expenses of criminal prosecutions shall be borne by the county in which such prosecution shall be begun; and all fines and forfeitures shall be paid into the treasury of such county. Defendants, in cases of conviction, may be taxed with the costs.

(Emphasis added). Section 261 clearly states the county bears the cost of prosecution unless the defendant is convicted. Therefore, when a defendant is acquitted, or the case is dismissed and a conviction has not been obtained, the court may not charge the defendant any fees or fines associated with the case.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Kim P. Turner
Kim P. Turner
Assistant Attorney General

Footnote: i.e., Sections 99-15-26(5), 99-19-71(4) and 21-23-7(13)