MS 2022-10-G-Pollan-October-25-2022-Probationer-Release October 25, 2022

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

Short answer: Yes. Section 47-7-37(3) makes release mandatory if a probation revocation hearing is not held within 21 days of detention. The sheriff physically holds the probationer and must release them, even if the Mississippi Department of Corrections obtained a probation warrant signed by a circuit judge.

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 AG opinions are persuasive authority but not binding precedent.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

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

If you are a Mississippi sheriff

You have a statutory release duty when the 21-day clock runs out. Build the trigger into your jail's intake and tracking system: when an offender is admitted on a probation violation, log the date of admission and the 21st day. On day 21, if no hearing has occurred, release. Document the release with a copy of the relevant statutes and the date calculation. Notify the circuit court and MDOC field officer in writing. If MDOC asks you to hold past day 21, decline, and refer them to the Pollan opinion.

You can reduce releases by triggering reminders early. At day 14, send written notice to the circuit court and MDOC that the clock is running. At day 18, send a follow-up. The Rushing opinion notes that practical coordination is what keeps the system working, and your written record of attempts to coordinate is also your shield against later criticism for the release.

If you are a probationer or their attorney

If you are detained on a probation violation warrant, the 21-day rule is your friend. Track the admission date. If day 21 arrives with no revocation hearing, the sheriff must release you to probation status. The release does not extinguish the violation; it just means you are back on probation while the matter is rescheduled. Coordinate with your attorney to confirm release.

If you serve as a circuit judge

Get the revocation hearing scheduled within the window. The statute says the duty to bring the probationer before the court is on the court. If your court has a backlog or the field office's paperwork is delayed, those are administrative problems that translate into mandatory releases. Build internal triggers so revocation hearings are docketed promptly.

If you are an MDOC field officer

MDOC retains custody of the probationer under their underlying sentence, but MDOC does not run the county jail. When a probation warrant has been served and the offender is admitted to a county jail, MDOC's role is to coordinate with the court for the hearing. Run your own clock. Confirm with the court and the sheriff at days 14 and 18.

If you are a county jail administrator

Document the calendar on every probation-warrant admission. Train booking officers to identify probation-warrant admissions at intake and start the clock. Maintain a chain of communications with MDOC and the court so day 21 does not surprise anyone.

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." That is the date the offender enters the jail, not the date the warrant was signed.

Q: Does the preliminary hearing count as the revocation hearing?
A: No. § 47-7-37 contemplates two separate steps: the preliminary hearing for reasonable cause, and the full revocation hearing. The 21-day clock runs to the revocation hearing.

Q: What happens after release?
A: The probationer is "released from custody and returned to probation status." That means the violation is not adjudicated; the original probation conditions remain in force. The court can still hold a revocation hearing later if the violation is properly noticed.

Q: Does this rule apply to sentence-suspension violations as well as probation violations?
A: § 47-7-37 governs probation violations specifically. Sentence-suspension violations may have parallel procedural rules; consult those statutes separately.

Q: Does MDOC have authority to take the offender out of the jail before day 21?
A: § 47-5-901 et seq. and the petition mechanism in § 47-5-907 contemplate MDOC removing state offenders from county jails for administrative reasons. That is different from MDOC overriding a § 47-7-37 release. The 21-day rule continues to run on its own.

Q: Can the sheriff hold an offender for additional charges after day 21?
A: If the offender has separate pending charges (a new arrest, a hold from another county), the sheriff retains custody on those grounds. The Pollan opinion is about release from probation-violation custody, not from custody on independent charges. A clean record-keeping practice keeps the two reasons separate.

Q: Does the offender have to be brought before the court physically, or can the hearing be held by video?
A: The statute does not prescribe the format. § 47-7-37 requires a "revocation hearing." Mississippi practice on remote hearings has evolved during and since the COVID-19 emergency. Whatever the format, what matters under § 47-7-37(3) is whether a hearing has been held within 21 days.

Q: What if the probationer waives the 21-day deadline?
A: The opinion does not address waiver. As a practical matter, courts often allow continuances on the probationer's request, and the time those continuances cover is generally not counted against the 21 days. Document any waiver or continuance request in writing.

Background and statutory framework

Mississippi's probation revocation procedures sit in § 47-7-37 of the Mississippi Code. The legislature deliberately built in a tight 21-day window to prevent prolonged pre-hearing detention without judicial review. The 2019 Rushing opinion previewed the practical coordination problem that the Pollan opinion now resolves at the statutory-duty level.

The county jail administration framework is in Title 19, Chapter 25 (sheriff's authority) and Title 47, Chapter 5, Article 11 (state offenders housed in county jails). The legislature consciously kept MDOC out of county jail administration: § 47-5-901(6) makes that explicit. The split allocates authority to the sheriff for what happens in the jail and to MDOC for what happens with the underlying sentence.

The Pollan opinion crystallizes the practical division: the court has the duty to schedule the revocation hearing within 21 days, MDOC has the duty to coordinate with the court, and the sheriff has the duty to release if the deadline is missed. Each actor has a distinct role, and none of them can be passed off to another when the clock runs out.

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

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