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 opinion is short on substance and long on jurisdictional caveats. The practical takeaway is that the timing of when a "city prisoner" becomes a "county prisoner" is determined by the contract between the city and the county, not by a statute. Cities and counties have flexibility to draft the agreement to reflect local practice, billing arrangements, and operational realities.

What this means for you

If you are a sheriff or county jail administrator

Section 47-1-39 is your contracting authority. It is not your operational rulebook. The contract you negotiate with each municipality should answer the practical questions: when does the city stop paying for the inmate? when does the county start paying? what about court costs, medical care, transportation? what happens at preliminary hearing, bind-over, indictment, and final disposition? The AG specifically declined to set those terms, so they are up to you.

If your county currently has a vague or outdated contract (or just a handshake), that is exactly the kind of arrangement that breaks down when a high-cost inmate moves through the system. Push for a written contract that specifies the trigger points.

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

Same advice from the city side. The contract should specify when financial responsibility shifts. If your city pays a flat per-day rate while the inmate is "yours" and the county picks up the cost when the inmate is "theirs," the trigger event matters. The bind-over stage is one possible trigger; indictment is another. Court disposition is a third. Choose deliberately.

If you are a county or city attorney drafting the contract

Specify these elements at minimum:

• The trigger that converts a city prisoner to a county prisoner (preliminary hearing, bind-over, indictment, formal arraignment, etc.).
• The financial responsibility for jail per diem before and after the trigger.
• Medical care responsibility (this is often the largest unexpected expense).
• Transportation responsibility for court appearances.
• Notification procedures when an inmate's status changes.
• Termination provisions and dispute resolution.

The AG will not bless any of this for you, but it is allowed by § 47-1-39 and your local needs determine the right answer.

If you are a defense attorney or a defendant

Custody transfers within Mississippi do not change your client's substantive rights. The bind-over to the grand jury is a procedural step under Mississippi law; whether your client is held in city custody or county custody at that point is an operational matter between the local governments. It does not affect the criminal case itself. But it can affect things like jail conditions, programming access, and visitation rules, which can vary between municipal and county facilities.

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: Does this opinion apply to misdemeanor cases too?
A: The opinion is framed around bind-over to the grand jury, which is a felony procedure. Misdemeanor cases generally do not go to the grand jury; they are tried in justice court or municipal court. For misdemeanors, the question of whose prisoner the inmate is depends on which court has jurisdiction and the contract terms between the city and county.

Q: What does Gage v. State add to the analysis?
A: The 1953 case stands for the proposition that a municipal defendant may be confined in the county jail if the city has contracted with the board of supervisors. It confirms that the contract is the legal vehicle for housing city prisoners in county facilities. The AG cited it primarily to ground the modern contract authority in a longstanding rule.

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. Rasco (Sept. 5, 2008) AG opinion reiterates the choice between building or contracting.

Section 7-5-25 (always operating in the background) limits the AG to prospective state-law questions and excludes contract interpretation.

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