If no probation revocation hearing happens within 21 days, must the Mississippi sheriff release the probationer?

Plain-English summary

Sheriff Greg Pollan of Calhoun County asked a question that comes up over and over in Mississippi county jails: when a probationer has been arrested on a probation violation warrant, the 21-day clock under § 47-7-37(3) runs out, and no revocation hearing has been held, who has authority to release the person? Specifically, can the sheriff release them, or does the Mississippi Department of Corrections (MDOC) decide?

The AG's answer is that the sheriff must release the probationer. The statute makes release mandatory once the 21 days expire, and the sheriff is the official physically holding the probationer in the jail.

The reasoning is built from several statutes. § 47-7-37(3) puts release on autopilot: "the offender may be confined no more than twenty-one (21) days from the admission to detention until a revocation hearing is held. If the revocation hearing is not held within twenty-one (21) days, the probationer shall be released from custody and returned to probation status." § 47-7-37(5)(c) tracks the same outcome from the court's side: if the court does not act within 21 days, "the offender shall be released from detention." Neither subsection names the releasing officer, but the AG points to the structural answer.

§ 19-25-69 says "the sheriff shall have charge of the courthouse and jail of his county, of the premises belonging thereto, and of the prisoners in said jail." § 47-5-901(6) makes clear that MDOC has no administrative authority over county jails. § 47-5-903(4) shields MDOC from liability for inmates held in county jail. § 47-5-907 gives the sheriff a process to ask MDOC to remove a state offender from the county jail and grants the sheriff "absolute immunity" if MDOC denies the petition: that immunity provision implies that liability otherwise rests with the sheriff. The 1992 Head opinion already said that once a prisoner is in a county jail, they are a county prisoner regardless of who arrested them.

So when the 21-day window closes, the duty to release falls on the sheriff because the sheriff is the one with custody. The opinion expressly applies whether MDOC obtained a probation warrant signed by a circuit judge or not. The clock is the clock.

The AG closes with a reminder echoing the 2019 Rushing opinion: this is an avoidable problem if MDOC and sheriffs work together to ensure detainees are brought before the court within 21 days. Default releases mean offenders who should be incarcerated walk free.

What this means for you

Mississippi sheriffs

The opinion concludes the sheriff has no authority to keep an offender in the county jail past 21 days from admission to detention if no revocation hearing has been held, and that the offender must be released to probation status. It reasons that although § 47-7-37(3) does not name the releasing officer, the sheriff is the official physically detaining the probationer (§ 19-25-69), and MDOC has no administrative authority over county jails (§ 47-5-901(6)). The result applies whether or not MDOC obtained a probation warrant signed by a circuit judge.

Probationers and their attorneys

Under the opinion, if 21 days pass from admission to detention without a revocation hearing, § 47-7-37(3) requires that the probationer be released from custody and returned to probation status. The opinion does not address whether or when a later revocation hearing may occur.

Circuit courts and MDOC

The opinion notes that the statutory duty to bring the probationer before the court for a hearing rests on the court, and it reiterates the Rushing opinion's call for MDOC and sheriffs to work together so that detainees are brought before the court within 21 days and offenders who should be incarcerated are not released by default.

Common questions

Q: Does the 21-day clock start when the warrant is signed or when the offender is detained? A: The statute uses "admission to detention," which the opinion treats as the operative starting point, not the date the warrant was signed.

Q: Does the preliminary hearing count as the revocation hearing? A: No. The opinion describes § 47-7-37 as contemplating a preliminary hearing to determine reasonable cause and then a separate revocation hearing; the 21-day limit runs until the revocation hearing is held.

Q: What happens after release?
A: The statute provides that the probationer is "released from custody and returned to probation status." The opinion does not discuss the possibility of a later revocation hearing.

Q: Does MDOC have authority to take the offender out of the jail before day 21? A: The opinion notes § 47-5-907 gives the sheriff a process to petition MDOC to remove a state offender from a county jail. It does not treat that as overriding the § 47-7-37(3) release; the opinion's holding is that the sheriff must release once the 21 days expire without a hearing.

Q: Does the opinion address custody on other charges, or waiver of the 21-day deadline? A: No. The opinion addresses only release from probation-violation custody under § 47-7-37; it does not address custody based on separate independent charges or any waiver of the deadline.

Background and statutory framework

Mississippi's probation revocation procedures sit in § 47-7-37 of the Mississippi Code. The statute limits detention before a revocation hearing to 21 days. The 2019 Rushing opinion discussed the need for sheriffs and MDOC to coordinate so that probationers are brought before the court within that period.

Section 19-25-69 places the county jail and its prisoners in the sheriff's charge. Section 47-5-901(6) says it gives MDOC no administrative authority over county jails. The opinion relies on these provisions to identify the sheriff as the official responsible for releasing the detainee.

The Pollan opinion identifies the court's statutory duty to bring the probationer before it for a hearing, urges sheriffs and MDOC to coordinate, and concludes the sheriff has no authority to continue holding the offender after 21 days without a revocation hearing.

Citations

• Miss. Code Ann. § 47-7-37 (probation revocation procedures)
• Miss. Code Ann. § 47-7-37(3) (21-day rule and mandatory release)
• Miss. Code Ann. § 47-7-37(5)(c) (release if court does not act within 21 days)
• Miss. Code Ann. § 19-25-69 (sheriff's charge over jail and prisoners)
• Miss. Code Ann. § 47-5-901(6) (MDOC has no administrative authority over county jails)
• Miss. Code Ann. § 47-5-903(4) (MDOC liability shield for inmates in county jail)
• Miss. Code Ann. § 47-5-907 (sheriff's petition for MDOC removal; absolute immunity if denied)
• MS AG Op., Head (Apr. 22, 1992) (county-jail prisoner is county prisoner regardless of arresting agency)
• MS AG Op., Rushing (Jan. 24, 2019) (call for MDOC-sheriff coordination on 21-day rule)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2022/10/G.Pollan-October-25-2022-Probationer-Release.pdf

Original opinion text

October 25, 2022
Greg Pollan
Sheriff, Calhoun County Sheriff's Office
178 South Murphree Street
Pittsboro, Mississippi 38951
Re:

Probationer Release

Dear Sheriff Pollan:
The Office of the Attorney General has received your request for an official opinion.

Questions Presented

1. If a revocation hearing is not held by a court to address the probation violation within
   twenty-one days, does the sheriff have the authority to release the subject from the county jail?
2. If the Mississippi Department of Corrections obtains a probation warrant signed by the
   circuit judge but the subject has not been granted a revocation hearing within the statutorily mandated twenty-one days, is the sheriff authorized to release the subject from the county jail? Brief Response If the twenty-one day period expires without a revocation hearing, the sheriff does not have the authority to keep the offender in the county jail any longer and is required to release the offender from the county jail. We reiterate our guidance in the Rushing opinion and urge sheriffs and the Department of Corrections to devise a solution so that every detainee is brought before the court within the twenty-one day period. MS AG Op., Rushing at *3 (Jan. 24, 2019). Applicable Law and Discussion We understand both of your questions to ask whether the sheriff is authorized to release a subject from the county jail who was detained, pursuant to a warrant, for a probation violation but has not been granted a revocation hearing within twenty-one days of being detained.

Section 47-7-37 of the Mississippi Code governs probation violations and revocation of probation. It provides that when an offender is arrested on a warrant for an alleged probation violation, once reasonable cause is determined at a preliminary hearing, "the offender may be confined no more than twenty-one (21) days from the admission to detention until a revocation hearing is held. If the revocation hearing is not held within twenty-one (21) days, the probationer shall be released from custody and returned to probation status." Miss. Code Ann. § 47-7-37(3) (emphasis added). The statute makes release mandatory if a revocation hearing is not held within twenty-one days, but it does not specify who shall release the detainee. Section 47-7-37(5)(c) states that if "the court does not hold a hearing or does not take action on the violation within the twenty-one day period, the offender shall be released from detention," and while the Department of Corrections may retain custody of the probationer under his sentence, it is the sheriff who is physically detaining said probationer. Section 19-25-69 further provides that "[t]he sheriff shall have charge of the courthouse and jail of his county, of the premises belonging thereto, and of the prisoners in said jail." Section 47-5-901(6), which governs the housing of state inmates in county jails, states, in part: This section does not create in the Department of Corrections, or its employees or agents, any new liability, express or implied, nor shall it create in the Department of Corrections any administrative authority or responsibility for the . . . administration or operation of county or other local jails or other places of confinement which are not staffed and operated on a full-time basis by the Department of Corrections. The correctional system under the jurisdiction of the Department of Corrections shall include only those facilities fully staffed by the Department of Corrections and operated by it on a full-time basis. (emphasis added). Additionally, Section 47-5-907, which affords a sheriff a process to petition the Department of Corrections for removal of a state offender housed in a county jail, provides a sheriff with "absolute immunity from liability for any injury resulting from subsequent behavior or from medical consequences regarding such inmate," should the Department of Corrections deny the petition. This language indicates that liability otherwise rests with the sheriff and implies that the sheriff exercises authority over those physically in his jail. See also Section 47-5-903(4) ("The state, the Department of Corrections, and its employees or agents, shall not be liable to any person or entity for an inmate held in a county jail under this section."); MS AG Op., Head at *1 (Apr. 22, 1992) (opining that once a suspect is arrested for a state violation by a highway patrol officer and placed in the custody of a county jail, such prisoner is a county prisoner to the same extent as a prisoner who was arrested by a deputy sheriff). Section 47-7-37(3) mandates that the probationer be brought before the court for a revocation hearing within twenty-one days or be released from custody and returned to his previous probation status. "Although the duty is by statute on the court [to cause the probationer to be brought before it for hearing], the practicalities of the situation demonstrate a strong need for MDOC and the

sheriffs to work together and cooperate to ensure that the probationers are provided the [statutory] procedural safeguards . . . and that prisoners that should be incarcerated are not released by default." MS AG Op., Rushing at *3 (Jan. 24, 2019). We reiterate our guidance in Rushing and recommend that the sheriffs and the Department of Corrections devise a solution so that every detainee is brought before the court within the twenty-one day period. It is the opinion of this office that the sheriff has no authority to continue to hold an offender in the county jail who has not received a revocation hearing within twenty-one days of his or her admission to detention. 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/ Abigail C. Overby
Abigail C. Overby
Special Assistant Attorney General