MS 2020-11-B-Gaston-November-10-2020-Rental-Space-for-District-Attorney November 10, 2020

Can a Mississippi county pay rent for a district attorney's office that isn't in the courthouse?

Short answer: The AG concluded that a Mississippi county Board of Supervisors could rent or fund the rental of office space for the district attorney if the Board determined the funding was necessary for the proper prosecution of criminal matters in the county. Section 261 and Section 25-31-11 supply the authority.

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 AG opinions are persuasive authority but not binding precedent.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

Sunflower County's District 3 Supervisor asked whether the Board of Supervisors could rent space to the district attorney, or provide funds for the DA to rent office space, if the office would be near but not actually inside the courthouse. The AG said yes, with one factual gating finding the Board has to make.

The legal architecture is two-piece. Section 25-31-11(7) of the Mississippi Code addresses district attorney funding and "implies that the board of supervisors are authorized to expend county funds to support the district attorney's office" (MS AG Op., Wayne County Board of Supervisors, Oct. 13, 2006). Article 14, Section 261 of the Mississippi Constitution then anchors the county's funding role: "The expenses of criminal prosecutions shall be borne by the county in which such prosecution shall be begun."

Reading the two together, prior AG opinions had repeatedly approved counties supplementing the state allowance to a district attorney's office when the county's governing authority finds that supplement is necessary for the proper prosecution of criminal matters in the county. The Wayne County opinion, MS AG Op., Moore (Oct. 12, 1984), and MS AG Op., Austin (May 24, 1984), all stand for that point. The Board has to make the factual finding ("consistent with the facts") and reflect it in the minutes. A 1992 opinion (Fortenberry, Oct. 7, 1992) added that the contribution should be tied to actual operating needs and not arbitrarily set.

The 2020 opinion does explicitly modify older guidance. A 1979 opinion (Kilpatrick, Nov. 29, 1979) had said a county could not pay for office space used by the DA and his staff. The AG noted Kilpatrick had not considered Section 25-31-11 or Section 261, and the post-1979 line of opinions superseded it. To the extent Kilpatrick had not already been modified, the 2020 opinion modifies it to conform.

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.

Common questions

Why is the county on the hook for prosecution expenses at all?

Section 261 of the Mississippi Constitution: "The expenses of criminal prosecutions shall be borne by the county in which such prosecution shall be begun." That is the constitutional baseline. The Legislature added Section 25-31-11 to allow counties to supplement state funding of district attorneys.

Does the county have to provide the office space, or just fund it?

Either is acceptable. The AG approved both renting space directly and providing funds to the DA's office to rent space.

Does the office have to be in the courthouse?

No. The opinion specifically asked about office space "near, but not in, the courthouse" and the AG approved that arrangement.

What factual finding does the Board need to make?

That the supplement is necessary for the proper prosecution of criminal matters in the county. The Board makes that determination on the facts, and an earlier opinion (Fortenberry, Oct. 7, 1992) cautioned that the amount must be tied to actual operating needs of the DA's office, not arbitrarily set.

What about the 1979 Kilpatrick opinion that said the opposite?

It is no longer good guidance. Kilpatrick had not considered Section 25-31-11 or Section 261. The 2020 opinion explicitly modifies it (to the extent earlier opinions had not already done so).

Background and statutory framework

Section 25-31-11(7) treats district attorney offices as state General Fund agencies for budget control purposes and contemplates that funds may flow into those offices "from county funds, grants or otherwise." Earlier AG opinions read that as authority for county funding of DA offices.

Article 14, Section 261 of the Mississippi Constitution: "The expenses of criminal prosecutions shall be borne by the county in which such prosecution shall be begun."

The Wayne County (Oct. 13, 2006), Moore (Oct. 12, 1984), and Austin (May 24, 1984) AG opinions stand for the rule that a county may supplement the state allowance to the DA's office, with the Board making a factual determination of necessity. Fortenberry (Oct. 7, 1992) anchors the requirement that the amount be tied to actual operating needs.

The Kilpatrick (Nov. 29, 1979) opinion is modified by Gaston (the 2020 opinion) to the extent earlier opinions had not already superseded it.

The opinion is signed by Special Assistant Attorney General Phil Carter on behalf of Attorney General Lynn Fitch.

Citations

Miss. Code Ann. Section 25-31-11(7) (district attorney budget framework)
Mississippi Constitution Article 14, Section 261 (county responsibility for criminal prosecution expenses)
MS AG Op., Wayne County Board of Supervisors at *1 (Oct. 13, 2006)
MS AG Op., Moore at *2 (Oct. 12, 1984)
MS AG Op., Austin at *1-2 (May 24, 1984)
MS AG Op., Fortenberry at *1 (Oct. 7, 1992)
MS AG Op., Kilpatrick at *1 (Nov. 29, 1979) (modified)

Source

Original opinion text

November 10, 2020

The Honorable Ben Gaston
District 3 Supervisor, Sunflower County
100 Dogwood Circle
Indianola, Mississippi 38751

Re: Rental Space for District Attorney

Dear Mr. Gaston:

The Office of the Attorney General has received your request for an official opinion.

Question Presented

Is the Sunflower County Board of Supervisors (the "Board") authorized to rent space to the district attorney or provide funds to the district attorney for him to rent office space near, but not in, the courthouse?

Brief Response

Yes. A board of supervisors may provide funding to the district attorney's office for the purpose of renting office space, provided the board determines, consistent with the facts, that such funding is necessary for the proper prosecution of criminal matters in the county.

Applicable Law and Discussion

The Mississippi Code explicitly envisions district attorneys receiving funds from a county board of supervisors:

The several district attorneys shall submit reports of revenues and expenditures and shall submit budget requests as required for State General Fund agencies. For purposes of budget control, the several offices of district attorney shall be considered General Fund agencies and the budget and accounts of the several offices, including salaries, travel expenses, office expenses and any other expenditures or revenues, shall be consolidated for all districts as far as such consolidation is practical.

All revenue or funds allocated or expended by a district attorney, whether such funds are appropriated from state funds, or whether such funds are received from county funds, grants or otherwise, shall be reported to the Legislative Budget Office.

Miss. Code Ann. § 25-31-11(7) (emphasis added). Our office has previously found that the language of Section 25-31-11 "implies that the board of supervisors are authorized to expend county funds to support the district attorney's office." MS AG Op., Wayne County Board of Supervisors at *1 (Oct. 13, 2006).

Moreover, the Mississippi Constitution directs that "[t]he expenses of criminal prosecutions shall be borne by the county in which such prosecution shall be begun . . . ." MISS. CONST. art. 14 § 261. We have previously opined that Section 261 of the Mississippi Constitution provides sufficient authority for a county board of supervisors to supplement the state allowance for operating expenses to the district attorney's office, provided said board makes the determination, consistent with the facts, that the supplement is necessary for the proper prosecution of criminal matters in the county. MS AG Op., Wayne County Board of Supervisors at 1 (Oct. 13, 2006); MS AG Op., Moore at 2 (Oct. 12, 1984); MS AG Op., Austin at *1-2 (May 24, 1984).

We are aware of a nearly forty-year-old opinion finding that a county cannot pay for office space to be used by the district attorney and his staff. See MS AG Op., Kilpatrick at *1 (Nov. 29, 1979). However, that opinion did not consider Section 25-31-11 or Section 261 of the Mississippi Constitution and preceded our Wayne County Board of Supervisors, Moore, and Austin opinions, discussed above, all of which cite these authorities in support of the proposition that a county may provide financial assistance to a district attorney under certain circumstances. Accordingly, to the extent our Kilpatrick opinion has not already been modified by our Wayne County Board of Supervisors, Moore, and Austin opinions, it shall be modified to conform to this opinion.

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/ Phil Carter
Phil Carter
Special Assistant Attorney General

[Footnote: When determining the amount that the Board should contribute to the district attorney, the Board should take "into consideration the actual amount of funds required by the District Attorney's office" to operate, to prevent "arbitrarily set[ting] the amount of . . . funds" to be given. MS AG Op., Fortenberry at *1 (Oct. 7, 1992).]