Could a new Kershaw County sheriff take back control of the detention center without county council consent?

Plain-English summary

Kershaw County asked whether its current sheriff could take over the detention center after an earlier sheriff, with county council approval, had transferred jail custody and jailer-appointment duties to the county government. The Attorney General said in 2009 that the transfer under S.C. Code Ann. § 24-5-12 should be treated as a binding transaction that typically bound successor sheriffs.

The letter stopped short of deciding how the duties could be returned. The statutes did not expressly provide a return procedure, so the office recommended a declaratory judgment to resolve whether the current sheriff could retake operations without county approval. The opinion did not itself give him that authority.

Currency note

This opinion was issued in 2009. 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

Q: Did the new sheriff automatically regain jail control when he took office? A: The Attorney General said the earlier approved transfer typically bound later sheriffs; the office did not conclude that a change in sheriff alone reversed it.

Q: Did the statute explain how a transferred jail could be returned to the sheriff? A: No. The letter said the statutes lacked an express procedure for returning control and recommended a declaratory judgment on the dispute.

Q: What was the legal significance of the county council's earlier approval? A: Section 24-5-12 allowed a sheriff to transfer jail duties to the county governing body with its approval. The office treated that completed transfer as binding.

Background and statutory framework

S.C. Code Ann. § 24-5-10 generally put jail custody with the sheriff. Section 24-5-12 allowed the sheriff, with county governing-body approval, to devolve jail-custody and jailer-appointment duties to the county. The Attorney General interpreted the earlier Kershaw transfer as durable but left the reversal question for a court.

Citations and references

Statutes: S.C. Code Ann. § 24-5-10; S.C. Code Ann. § 24-5-12. The letter also discussed prior Attorney General opinions on the effect of a transfer.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-6-2009/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/dubose-j-k-jr-os-8765-5-6-09-custody-of-county-jail-kershaw-county.pdf

Original opinion text

HENRY M CMASTER
ATIORNEY G ENERAL

May6, 2009

J, Kennedy DuBose, Jr., Esquire
Kershaw County Attorney
P. 0 . Drawer 39
Camden, South Carolina 29021 -0039
Dear Mr. DuBose:

In a letter to this office you indicated that former Kershaw County SheriffL.L. DeBruhl, prior to 1987, with approval of the Kershaw County Council, devolved all his powers and duties relating to the custody of the county jail and the appointment of a jailer on the governing body of the county as provided in S.C. Code Ann.§ 24-5-12. 1 S.C. Code Ann. § 24-5-10 provides generally that
[t]he sheriff shall have custody of the jail in his county and, if he appoint a jailer to keep it, the sheriff shall be liable for such jailer and the sheriff or jailer shall receive and safely keep in prison any person delivered or committed to either of them, according to law. Section 24-5-12 states that
[n]otwithstanding the provisions of§ 24-5-10 or any other provision of law, the sheriff of any county may, upon approval of the governing body of the county, devolve all ofhis powers and duties relating to the custody of the county jail and the appointment of a jailer on the governing body ofthe county; provided, a sheriff who

1

As set forth in CruTaway v. DeBruhl, 993 F.2d 228, 1993 WL 136983 (4th Cir. Ct. App., 1993) (unpublished disposition),
[i]t...is undisputed that before 1987, in accord with S.C. Code Ann. § 24-5-12, the Kershaw County Sheriff had devolved official responsibility for operation of the county jail to the governing body of Kershaw County. The jail was housed in facilities independent of the Sheriffs office, and was operated by a jail administrator and staffemployed and controlled by the Kershaw County Manager and the Kershaw County Council. R EMBERT

c. DENNIS BUILDING • POST OFFICE Box 11549 • COLUMBIA , SC 29211-1549 • T ELEPHONE 803-734-3970 • FACSIMILE 803-253-6283

Mr. DuBose
Page2
May6, 2009

has been defeated in a primary or general election may not devolve said duties on the governing body of the county. An opinion of this office dated February 12, 1990 indicated that consistent with such provision," .. .if a sheriff has properly transferred his duties in regard to the jail upon the county governing body, he presumably would no longer be responsible for its operation." I am unaware of any special legislation regarding Kershaw County that makes any provision for the transfer of the county jail from the sheriff. You stated that the present sheriff, Sheriff Stephen McCaskill, has written the County Administrator requesting that the operation of the Kershaw County Detention Center be returned to the sheriff's office. Referencing such, you have requested an opinion of this office on the following question: Can present Sheriff McCaskill, without the consent of the governing body of the County, "take over the operation of the Detention Center", upon the authority of Section 24-5-10, when the Sheriff's predecessor in office, upon approval of the Kershaw County Council, devolved "all of his powers and duties relating to the custody of the county jail and the appointment of the jailer on the governing body" of Kershaw County as provided in Section 24-5-12? As set forth by Section 24-5-12, the sheriff, upon approval of the county governing body, is authorized to "devolve" all powers and duties relating to the custody of the county jail and the appointment of a jailer "on the governing body of the county." As referenced in a prior opinion of this office dated June 5, 1996,
[t]he phrase "devolve" means to transfer from one person to another, to deliver over, or to hand down .. .It is said that the term "devolve" means "[ t]o pass or be transferred from one person to another; to fall on, or accrue to, one person as the successor of another: as a title, right, office liability. The word "devolution" means the transference of property from one person to another. The opinion reasoned that "based upon these authorities, I would analogize Section 24-5-12 to a transfer or conveyance of property." Consistent with the above, in the opinion of this office, there was a transfer by the office of sheriff of the powers and duties relating to the custody of the Kershaw County jail and the appointment of a jailer pursuant to Section 24-5-12 and the transfer should be considered a binding transaction. Typically, the action of one sheriff in such instance should be considered as binding upon any subsequent sheriff. However, the statutes do not expressly address the situation as to the procedure for returning the jail to the sheriff. As a result, in the opinion of this office, a declaratory judgment would be recommended to resolve the question with finality as to whether Sheriff

Mr. DuBose
Page3
May6, 2009

McCaskill would be authorized to take over the operations of the detention center without the approval of the county governing body. If there are any questions, please advise.

Very truly yours,
Henry McMaster
Attorney General

dµ<Jd- /&tLJBy:

REVIEWED AND APPROVED BY:

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Robert D. Cook
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Deputy Attorney General

Charles H. Richardson
Senior Assistant Attorney General