Can a West Virginia sheriff demand sales records from local businesses to figure out how much they owe in hotel occupancy tax and EMS fees, and can the sheriff use a subpoena to get them?

Plain-English summary

Tucker County's prosecuting attorney described a collection problem. The County had imposed a 6% hotel occupancy tax and a 2% special emergency ambulance service fee on certain businesses (hotels, short-term rentals, watercraft rentals, ski-area sales). The County Commission suspected some businesses were under-paying. The Sheriff had sent delinquency letters but could not calculate the actual amount owed without seeing the businesses' sales records. So the prosecuting attorney asked: can the Sheriff demand sales records, and can he subpoena them?

The AG answered yes to direct demand and qualified yes to subpoena, but only in narrow circumstances.

The direct-demand answer flows from the Sheriff's role as ex officio county treasurer under W. Va. Code § 7-5-1. State ex rel. Damron v. Ferrell (1965) confirms the structure: the sheriff is a constitutional officer who is also, by statute, the county treasurer with mandatory duties to "receive, collect and disburse all moneys due" to the county. Both the hotel tax (§ 7-18-13(a)) and the EMS fee (§ 7-15-17) are "moneys due" to the county that the Sheriff must collect. Because the tax and fee are percentage-based, calculation requires sales data. The Sheriff therefore has implied authority to request that data, by analogy to In re Shonk Land Co. (W. Va. 1974), which gave a county tax assessor authority to "seek out all information" needed to fulfill his legal obligation. State ex rel. PSC v. Lackawanna Transportation (2012) reaches a similar conclusion about the PSC's investigative authority extending to demanding tax records when needed for rate-setting.

Liberal-construction canons reinforce the result. Tax-collection statutes are construed with attention to "the factor of administrative convenience" (Calhoun County Assessor v. Consolidated Gas Supply, 1987), and the EMS-fee statute itself contains a liberal-construction directive at § 7-15-2(e).

The AG identified an alternative route: the State Tax Commissioner can share certain information with sheriffs under W. Va. Code § 11-10-5d. Subsection (i) lets the Tax Commissioner enter a written exchange-of-information agreement with the Sheriff for tax-form access; subsection (e) lets a sheriff obtain tax information through an ex parte order in a criminal investigation. Either route gives the Sheriff verifiable data without relying solely on business cooperation.

On subpoenas, the AG was firmer. A subpoena requires a predicate proceeding (civil case, criminal case, or specific statutory administrative-subpoena authorization). The Sheriff has not started such a proceeding here. The right sequence: (1) request directly, (2) if non-compliance persists, the County Commission can sue under § 7-18-13(a) (hotel tax) or under the EMS fee's civil-action route confirmed in Randy Waugh; (3) once a civil suit is pending, civil subpoenas under W. Va. R. Civ. P. 45(a)(1)(A)(iii) become available, subject to Fifth Amendment limits (State ex rel. McGraw v. Pawn Am., 1998). Failure to comply with the hotel-tax statute also triggers criminal penalties (§ 7-18-15(d)), so a grand-jury subpoena under § 52-2-11 or trial subpoena under W. Va. R. Crim. P. 17(c) is available once an investigation or charges progress.

What this means for you

County sheriffs and sheriff's deputies

The opinion concludes that a sheriff's implied authority under W. Va. Code § 7-5-1 (ex officio county treasurer) extends to requesting sales records needed to calculate the percentage-based hotel occupancy tax (§ 7-18-1 et seq.) and EMS fee (§ 7-15-17). The opinion identifies two additional information paths: an exchange-of-information agreement with the State Tax Commissioner under § 11-10-5d(i), and ex parte orders under § 11-10-5d(e) in connection with a criminal investigation. The opinion concludes that subpoenas are not the right tool absent a pending civil suit, criminal investigation, or specific statutory grant of administrative-subpoena power.

County prosecutors

The opinion treats civil action as the next step if direct requests fail: § 7-18-13(a) for the hotel tax and the EMS fee civil-action route confirmed in Randy Waugh. The opinion treats grand-jury subpoenas under § 52-2-11 and ex parte orders for tax information under § 11-10-5d(e) as available investigative tools for criminal violations under § 7-18-15(d).

Hotel operators, short-term rental hosts, and other businesses subject to local tax/fee

Under the opinion, the sheriff's request for sales records is a legitimate exercise of his ex officio treasurer authority under § 7-5-1, with the scope tied to information needed to compute the tax or fee. The opinion notes that the County Commission has civil-suit authority under § 7-18-13(a) and that hotel-tax violations carry criminal penalties under § 7-18-15(d).

State Tax Commissioner staff

The opinion identifies § 11-10-5d(i) (written exchange-of-information agreements) and § 11-10-5d(e) (ex parte orders in criminal investigations) as the statutory paths for sharing tax information with sheriffs.

County commissioners

The opinion treats the County Commission's collection authority as coextensive with the Sheriff's, citing § 7-15-17 (EMS fee) and § 7-18-1(a) (hotel tax). Civil-action authority for collection sits at § 7-18-13(a) for the hotel tax and is confirmed for the EMS fee by Randy Waugh.

Tax compliance attorneys

The opinion treats administrative-subpoena power as requiring specific statutory authorization (giving § 5-16-12a(d) for PEIA fraud as the example), not as flowing from an officer's general authority. The opinion's recognition of implied authority to request sales information is tied to the specific collection duties under § 7-5-1.

Common questions

Q: Does the sheriff need a court order to ask a business for sales records?
A: No. The Sheriff's ex officio treasurer duty under W. Va. Code § 7-5-1 includes implied authority to request the information necessary to calculate the percentage-based hotel tax and EMS fee.

Q: What if the business refuses?
A: The County Commission can authorize a civil action under W. Va. Code § 7-18-13(a) for the hotel tax or under the EMS fee statute (per Randy Waugh). Once a case is filed, civil subpoenas become available.

Q: Can the sheriff just issue a subpoena directly?
A: Not as an administrative tool absent a specific statutory grant. The AG identified PEIA fraud (§ 5-16-12a(d)) as an example of a specific administrative-subpoena authorization. Hotel tax and EMS fee collection do not have that kind of statutory grant. Subpoenas require a predicate civil case, criminal investigation, or charge.

Q: Can the sheriff get records from the State Tax Commissioner?
A: Yes, in two ways. Under § 11-10-5d(i), the Tax Commissioner can enter a written exchange-of-information agreement with the Sheriff for tax-form access. Under § 11-10-5d(e), the Sheriff can obtain tax information through an ex parte order in a criminal investigation.

Q: Does the County Commission also have collection authority?
A: Yes. Section 7-15-17 (EMS fee) and § 7-18-1(a) (hotel tax) both vest collection authority in the Commission directly. The AG read the Commission's and Sheriff's authorities as coextensive, with the Sheriff acting unless the Commission opts to use another individual or entity.

Q: What about the Fifth Amendment?
A: State ex rel. McGraw v. Pawn America (W. Va. 1998) recognizes that civil subpoenas are subject to Fifth Amendment limits. A business owner can assert the privilege against compelled production of records that would themselves incriminate. The privilege is fact-dependent.

Q: What if the sheriff suspects criminal nonpayment?
A: Coordinate with the prosecuting attorney. Section 7-18-15(d) makes hotel-tax violations criminal. The investigation can include grand-jury subpoenas under § 52-2-11 and ex parte orders for tax information under § 11-10-5d(e). Once charges are brought, trial subpoenas under W. Va. R. Crim. P. 17(c) are available.

Background and statutory framework

The Sheriff's role as ex officio county treasurer is the linchpin. Section 7-5-1 identifies the Sheriff as the constitutional officer who, by statute, also serves as treasurer; Damron v. Ferrell (W. Va. 1965) confirms the structure. The Sheriff "shall receive, collect and disburse all moneys due" to the county. Those duties are "mandatory."

Two revenue streams sit on the Sheriff's collection plate. The hotel occupancy tax under W. Va. Code §§ 7-18-1 et seq. is a 6% tax on hotel-room consideration, due monthly under § 7-18-10. The Sheriff is named as the County's "agent for administration and collection" with power to "distrain property and to initiate civil suits for collection" (§ 7-18-13(a)). Failure to comply is criminally punishable under § 7-18-15(d).

The EMS fee under § 7-15-17 is a county-imposed fee on specified business categories (typically including short-term rentals, camping, watercraft rentals, and skiing). Section 7-15-2(e) requires liberal construction.

The implied-authority analysis tracks two strands. Calhoun County Assessor v. Consolidated Gas Supply (1987) recognizes that "courts have been tolerant in construing statutes prescribing the procedure for assessments[,] … the factor of administrative convenience in the enforcement and collection of taxes is taken into consideration by the courts." In re Shonk Land Co. (1974) gives a county tax assessor authority to "seek out all information which would enable him to properly fulfill his legal obligation." State ex rel. PSC v. Lackawanna Transportation (2012) extends similar reasoning to a regulatory body's investigative authority.

The State Tax Commissioner pathway runs through W. Va. Code § 11-10-5d. Subsection (e) allows tax information to be obtained through an ex parte order issued in a criminal investigation. Subsection (i) authorizes a written exchange-of-information agreement between the Tax Commissioner and the Sheriff for the Sheriff to obtain tax forms. Both routes are bilateral: the Sheriff also provides certain information to the Tax Commissioner under any agreement.

Subpoena authority is bounded. W. Va. R. Crim. P. 17(c) governs criminal subpoenas duces tecum. W. Va. R. Civ. P. 45(a)(1)(A)(iii) governs civil document subpoenas. Section 52-2-11 authorizes grand-jury subpoenas. Section 5-16-12a(d) is the example of a specific administrative-subpoena statute (PEIA fraud). Without one of these, an "administrative subpoena" issued by a sheriff is not enforceable.

The civil-action backstop for the EMS fee is confirmed by Randy Waugh, 236 W. Va. 468, 781 S.E.2d 379, and a 2018 AG opinion to Hon. Raymond LaMora III, 2018 WL 4608630. The hotel-tax civil-action authority is in § 7-18-13(a). The Fifth Amendment privilege against compelled self-incrimination remains an outer limit (Pawn America, 1998).

Citations and references

Statutes:

• W. Va. Code § 7-5-1 (Sheriff as ex officio treasurer)
• W. Va. Code §§ 7-18-1 et seq. (Hotel occupancy tax)
• W. Va. Code §§ 7-15-1 et seq. (EMS fee)
• W. Va. Code § 11-10-5d (Tax information sharing)
• W. Va. Code § 52-2-11 (Grand jury subpoena)
• W. Va. R. Crim. P. 17(c); W. Va. R. Civ. P. 45(a)(1)(A)(iii)

Cases:

• State ex rel. Damron v. Ferrell, 149 W. Va. 773, 143 S.E.2d 469 (1965)
• Calhoun Cnty. Assessor v. Consol. Gas Supply Corp., 178 W. Va. 230, 358 S.E.2d 791 (1987)
• In re Shonk Land Co., 157 W. Va. 757, 204 S.E.2d 68 (1974)
• State ex rel. Pub. Serv. Comm'n of W. Va. v. Lackawanna Transp. Co., 230 W. Va. 144, 736 S.E.2d 741 (2012)
• State ex rel. McGraw v. Pawn Am., 205 W. Va. 431, 518 S.E.2d 859 (1998)
• Randy Waugh, 236 W. Va. 468, 781 S.E.2d 379

Source

• Landing page: not separately published (the PDF is the official record)
• Original PDF: https://ago.wv.gov/media/37647/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
John B. McCuskey
Attorney General

Phone: (304) 558-2021
Fax: (304) 558-0140
October 27, 2025

The Honorable Savanah Hull Wilkins
Tucker County Prosecuting Attorney
211 First Street, Suite 207
Parsons, WV 26287
Dear Prosecutor Wilkins:
You have asked for an Opinion of the Attorney General about the Sheriff's authority to
obtain local businesses' sales records to collect Tucker County's hotel occupancy tax and special
emergency ambulance service fee. This Opinion is being issued under West Virginia Code § 5-3-2,
which provides that the Attorney General "may consult with and advise the several prosecuting
attorneys in matters relating to the official duties of their office." When this Opinion relies on
facts, it depends solely on the factual assertions in your correspondence and discussions with the
Office of the Attorney General.

In your request, you explain that Tucker County businesses are subject to a 6% hotel tax
and a 2% special emergency ambulance service fee. The hotel tax is due monthly, in accordance
with West Virginia Code § 7-18-10, and the EMS fee is due quarterly, as required by a local
ordinance enacted under West Virginia Code § 7-15-17. "Hotel operator[s]" in Tucker County
collect the hotel tax as part of the price of a "hotel room." W. VA. CODE § 7-18-1(d); see also W.
VA. CODE § 7-18-3 (defining terms). And the EMS fee applies to revenue from "recreational and
amusement" sales including "[s]hort-term rentals," "camping," watercraft rentals, and skiing fees.
Tucker Cty., W. Va., Ordinance, Special Emergency Ambulance Serv. Fee (Jan. 31, 2025).

The County Commission suspects that some businesses haven't paid their full hotel taxes
and EMS fees. The Tucker County Sheriff has thus sent delinquency letters requesting payment.
But without access to businesses' sales records, neither the Sheriff nor the County Commission
can determine the exact amounts owed, as both the tax and fee are calculated as percentages of
total sales.

With these facts in mind, your letter raises the following legal questions:
(1) Does the Sheriff have the authority to request sales information from
businesses to determine amounts owed?
(2) Can the Sheriff send a subpoena to the businesses to obtain the
needed information?

We conclude that the Sheriff has the authority to request sales information directly from
businesses. The Sheriff has a potential alternative route too: the Tax Commissioner may be able
to provide the sought after information to the Sheriff. Separately, you should not use a subpoena,
except in limited circumstances.

DISCUSSION

I. The Sheriff can directly request the information.

Because treasurers are "created by statute," they are "possessed only of such powers as are
expressly conferred by the Constitution and legislature, together with such as are reasonably and
necessarily implied in the full and proper exercise of the powers so expressly given." Syl. Pt. 1,
State ex rel. State Line Sparkler of WV, Ltd. v. Teach, 187 W. Va. 271, 272, 418 S.E.2d 585, 586
(1992) (discussing powers of county commissions).

The "sheriff is a constitutional officer and[,] by statute, … [he] is also ex officio the county
treasurer." State ex rel. Damron v. Ferrell, 149 W. Va. 773, 776, 143 S.E.2d 469, 471 (1965);
W. VA. CODE § 7-5-1. In his role as county treasurer, the Sheriff has limited powers: he "shall
receive, collect and disburse all moneys due" to the county. W. VA. CODE § 7-5-1. And his
responsibilities are mandatory. Ferrell, 149 W. Va. at 778-79, 143 S.E.2d at 472-473. Even
where—like here—the Legislature has granted county commissions the power to collect taxes and
fees directly, the Sheriff must continue to do so unless the commission opts to use another
individual or entity. See W. VA. CODE § 7-15-17 (stating that "a county commission may …
collect" an EMS fee); W. VA. CODE § 7-18-1(a) (giving county commissions ability to "impose[]
and collect[]" a hotel tax); see Letter from Att'y Gen. of W. Va. to the Hon. Raymond LaMora,
2020 WL 4209605, *1-2 (July 9, 2020) (explaining power to collect is coextensive).

The Sheriff has the implied authority to request sales information from businesses. Both
the hotel tax statute and the ambulance fee statute are to be liberally construed in favor of the
Sheriff's power. As to the tax, "courts have been tolerant in construing statutes prescribing the
procedure for assessments[,] … the factor of administrative convenience in the enforcement and
collection of taxes is taken into consideration by the courts." Calhoun Cnty. Assessor v. Consol.
Gas Supply Corp., 178 W. Va. 230, 232, 358 S.E.2d 791, 793 (1987) (cleaned up). And as to the
fee, the law decrees that the statute must be "liberally construed" to achieve its purpose of funding
and providing necessary emergency ambulance services. W. VA. CODE § 7-15-2(e).

As noted, the Sheriff, as treasurer, has the express power to "collect … moneys" owed to
the county. W. VA. CODE § 7-5-1. Meaning, the Sheriff must "gather or exact from a number of
persons or sources" all "funds" or "sums of money" owed to the county. Collect, MERRIAM-WEBSTER.COM, https://tinyurl.com/495n3687 (last visited Oct. 24, 2025); Money, BLACK'S LAW
DICTIONARY (12th ed. 2024). The hotel tax and EMS fee qualify as "moneys due" to the county.
W. VA. CODE § 7-5-1. So the Sheriff must collect them. Id. But the Sheriff will not be able to
fulfill his charge here unless and until he has businesses' sales information in hand, given that the
hotel tax and EMS fee are percentage-based amounts. Cf. State ex rel. Pub. Serv. Comm'n of W.
Va. v. Lackawanna Transp. Co., 230 W. Va. 144, 148, 736 S.E.2d 741, 745 (2012) (explaining how
the Public Service Commission's power to "investigate and review" appropriate rates included the
power to demand certain tax records of an affiliate to a regulated business). So, making a request
to businesses is necessary for the Sheriff to fulfill his mandatory duty to "collect" as treasurer. Cf.
In re Shonk Land Co., 157 W. Va. 757, 761, 204 S.E.2d 68, 70 (1974) (explaining how a county
tax assessor is empowered to "seek out all information which would enable him to properly fulfill
his legal obligation," including by requiring an annual report of all coal properties). The power
to request that information from businesses is thus "reasonably and necessarily implied in the full
and proper exercise of the powers so expressly given."* Syl. Pt. 4, State ex rel. W. Va. Parkways
Auth. v. Barr, 228 W. Va. 27, 716 S.E.2d 689 (2011).

The Tax Commissioner might also be able to provide the information the Sheriff needs.
Although the Tax Commissioner is generally obligated to keep sales tax information confidential,
he may disclose returns to county commissions in a few specific circumstances. Relevant here,
the Tax Commissioner can enter into a written exchange-of-information agreement with the Sheriff
for the Sheriff to obtain or inspect tax forms. W. VA. CODE § 11-10-5d(i). Under such an
agreement, the county would also have to provide information to the Tax Commissioner. Id. The
Sheriff may also be able to obtain the tax information as part of a criminal investigation by ex parte
order. W. VA. CODE § 11-10-5d(e). The Sheriff should explore these alternatives if his direct
inquiries are unsuccessful.

• As noted above, the county commission itself also has the power to collect these taxes and fees. As to the ambulance
  service fees, our Office has already recognized that nothing in the relevant statute "constrains the manner by which
  commissions may collect unpaid fees." Letter from Att'y Gen. to Raymond K. LaMora III, 2018 WL 4608630, at 2
  (July 18, 2018). And as to the hotel taxes, county commissions can "promulgate such regulations and return forms as
  may be necessary or desirable for the administration and collection of the tax." W. VA. CODE § 7-18-13(a). Given
  that the Sheriff's power to collect is co-extensive with the Commission's, it would make sense that the Sheriff has the
  same broad means of collection available that the Commission would. 2018 WL 4608630, at 2.

II. The Sheriff should use a subpoena only when appropriate.

Based on the facts you've presented, a subpoena would not be appropriate at this time.
While courts do issue subpoenas in both criminal and civil matters, and officials may also issue
administrative subpoenas in certain statutorily specified circumstances, you have not identified
any pending proceeding or investigation that would serve as a basis for issuing a subpoena, whether
civil, criminal, or administrative. See W. VA. R. CRIM. P. 17(c) (permitting subpoenas that
"command the person to whom it is directed to produce" "documentary evidence"); W. VA. R. CIV.
P. 45(a)(1)(A)(iii) (permitting subpoenas to "produce designated documents"); W. VA. CODE
§ 52-2-11 (permitting grand jury subpoenas); see, e.g., W. VA. CODE § 5-16-12a(d) (permitting
administrative subpoenas for PEIA fraud).

That doesn't mean subpoenas are never appropriate. The County Commission may collect
unpaid EMS fees by civil action. See Syl. Pt. 6, Randy Waugh, 236 W. Va. 468, 781 S.E.2d 379
(confirming that "a civil action" is an appropriate means of collection); see also Letter from Att'y
Gen. to Raymond K. LaMora III, 2018 WL 4608630, at *2 (July 18, 2018) ("[T]here is no doubt
that [a civil action] is a permissible, legal method to collect delinquent special emergency
ambulance service fees."). The hotel tax is enforceable by civil action as well. See W. VA. CODE
§ 7-18-13(a) ("[T]he sheriff ... shall be the county's agent for administration and collection of the
tax and shall have the power to distrain property and to initiate civil suits for collection."). Civil
subpoenas would be available if collection advances to litigation, subject to the limits of the Fifth
Amendment. W. VA. R. CIV. P. 45(a)(1)(A)(iii); see State ex rel. McGraw v. Pawn Am., 205 W.
Va. 431, 434, 518 S.E.2d 859, 862 (1998). Further, failure to comply with the hotel tax's
requirements carries criminal penalties, meaning your office is empowered to investigate these
offenses. See W. VA. CODE § 7-18-15(d) ("Proceedings against any person under this section shall
be initiated in the county … wherein such person resides if any element of the offense occurs"
there, "or if no element of the offense occurs in such county of residence, then in the county where
the offense was committed."). And as part of a criminal investigation, prosecutors could obtain
tax information by grand jury subpoena (or, as discussed, by ex parte order). W. VA. CODE § 52-2-11; W. VA. CODE § 11-10-5d(e). Once charges are brought, you have trial subpoenas at your
disposal. See W. VA. R. CRIM. P. 17(c).

Sincerely,

John B. McCuskey
West Virginia Attorney General
Holly J. Wilson
Principal Deputy Solicitor General