When does a city prisoner become a county prisoner in Mississippi, and can a city-county jail contract specify the trigger?

Plain-English summary

Sheriff Rushing of Lincoln County asked two related questions about jail-housing logistics. Mississippi cities have a choice: build and maintain a city jail, or contract with the county to use the county jail for municipal prisoners. Section 47-1-39 sets up that choice. The questions were:

1. Does the law automatically convert a city prisoner into a county prisoner once that person is bound over to the grand jury at a preliminary hearing?

2. Does Section 47-1-39 let a county and a city write a contract that says a city inmate stays a city inmate until the grand jury actually indicts (rather than at the bind-over stage)?

The AG's answers, both short:

1. No statute or case the AG could find says the prisoner automatically converts at the bind-over moment. The bind-over to the grand jury is a procedural step in the criminal process; it does not by itself shift custody responsibility from the city to the county.

2. Section 47-1-39 authorizes the contract but does not specify what its terms must be. The two parties negotiate. The AG will not interpret or approve specific contract language by official opinion.

The practical takeaway is that the timing of when a "city prisoner" becomes a "county prisoner" is set by the contract between the city and the county, not by a statute.

What this means for you

If you are a sheriff or county jail administrator

The opinion holds it is not aware of any statutory authority or case law that a city prisoner becomes a county prisoner upon being bound over to the grand jury at a preliminary hearing. It holds Section 47-1-39 authorizes a contract for housing municipal prisoners in the county jail but does not speak to the contract's terms, which the parties negotiate. The opinion states it cannot opine on the terms or interpretation of a contract.

If you are a municipality with prisoners moving through the county jail

The opinion holds Section 47-1-39 gives municipalities two options: construct and maintain a municipal prison, or contract with the board of supervisors for use of the county jail. It holds the terms of any such contract are for the parties to negotiate in accordance with the law.

If you are a county or city attorney drafting the contract

The opinion holds Section 47-1-39 authorizes the contract but does not specify its terms, and that the AG cannot opine on the terms or interpretation of a contract (citing MS AG Op., Hensarling, Sept. 3, 2021). It found no statutory authority or case law converting a city prisoner to a county prisoner at the bind-over stage.

Common questions

Q: What is a "preliminary hearing" and a "bind-over to the grand jury"?
A: A preliminary hearing is held in front of a judge (often a justice court or municipal court judge) to decide whether there is probable cause to send a felony case forward. If the judge finds probable cause, the case is "bound over" to the grand jury, meaning it heads to the next step in the felony process. The grand jury later decides whether to indict.

Q: If the city has not contracted with the county, where does a city prisoner go after a bind-over?
A: Section 47-1-39 says cities can build their own jails or contract with the county. If the city has neither a jail nor a contract, the practical answer is that there has to be some arrangement (formal or informal) for housing prisoners awaiting court action. The AG opinion does not address that situation directly, but the statutory architecture assumes a contract is in place.

Q: Can the city decline to pay for jail housing once the case is bound over even if the contract says otherwise?
A: Once the contract specifies the trigger, both parties are bound. Disputes about whether the contract was breached are court matters, not AG opinion matters.

Q: What does Gage v. State add to the analysis?
A: The opinion cites Gage v. State, 68 So. 2d 417 (Miss. 1953), for the proposition that a municipal defendant may be confined in the county jail if the city has contracted with the board of supervisors to use the county jail in lieu of constructing and maintaining its own.

Background and statutory framework

Section 47-1-39 is the key authority:

The governing authorities of municipalities shall have the power to construct and maintain a municipal prison, and to regulate the keeping of the same and the prisoners therein, and to contract with the board of supervisors, which is empowered in the premises, for the use of the county jail by the municipality.

The statute frames a binary: build a city jail, or contract with the county. The contract terms are not specified, so they are negotiable.

Gage v. State, 68 So. 2d 417, 418 (Miss. 1953), confirms the contract path as a legal route. The MS AG Op., Rasco (Sept. 5, 2008) reiterates the choice between building a municipal prison or contracting with the county. The opinion states it cannot opine on the terms or interpretation of a contract, citing MS AG Op., Hensarling (Sept. 3, 2021).

Citations

• Miss. Code Ann. § 47-1-39
• Gage v. State, 68 So. 2d 417 (Miss. 1953)
• MS AG Op., Rasco (Sept. 5, 2008)
• MS AG Op., Hensarling (Sept. 3, 2021)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2024/04/S.Rushing-April-4-2024-Housing-Municipal-Prisoners-in-the-County-Jail.pdf

Original opinion text

April 4, 2024

The Honorable Steve Rushing
Sheriff, Lincoln County
215 Justice Street
Brookhaven, Mississippi 39601
Re: Housing Municipal Prisoners in the County Jail

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

Questions Presented

1. Is there statutory authority or case law stating that a city prisoner becomes a county prisoner when bound over to the county grand jury at a preliminary hearing?
2. Does Mississippi Code Annotated Section 47-1-39 authorize a county to include in the contract that a city inmate will not become a county prisoner until said prisoner is indicted by the grand jury?

Brief Response

1. We are not aware of any statutory authority or case law stating that a city prisoner becomes a county prisoner upon being bound over to the county grand jury at a preliminary hearing.
2. If a county and municipality choose to contract with one another for the holding of municipal prisoners in the county jail pursuant to Section 47-1-39, said contract should include the terms negotiated between the parties in accordance with the law. We are unable to officially opine as to the terms or interpretation of a contract.

Applicable Law and Discussion
While we are not aware of any statutory authority or case law stating that a city prisoner becomes a county prisoner upon being bound over to the grand jury at a preliminary hearing, Section 47-1-39 provides two options for housing municipal prisoners. That section states: "The governing authorities of municipalities shall have the power to construct and maintain a municipal prison, and to regulate the keeping of the same and the prisoners therein, and to contract with the board of supervisors, which is empowered in the premises, for the use of the county jail by the municipality." Id.; see Gage v. State, 68 So. 2d 417, 418 (1953) (providing that a municipal defendant may be confined in the county jail if the city has contracted with the board of supervisors to use the county jail in lieu of constructing and maintaining their own); MS AG Op., Rasco at *1 (Sept. 5, 2008) (opining that the city may contract with the county for the holding of municipal prisoners or construct its own prison).

In response to your second question, Section 47-1-39 only authorizes a contract for the housing of municipal prisoners. It does not speak to the terms of said contract. Should the county and municipality choose to contract for the holding of municipal prisoners in the county jail, the two should negotiate terms of the agreement in accordance with the law. We are unable to officially opine as to the terms or interpretation of a contract. See MS AG Op., Hensarling at *3 (Sept. 3, 2021) (stating that we cannot offer guidance on specific language of local agreements).

To the extent that any prior opinions conflict, they are modified prospectively to conform herewith.

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