April 1, 1996
Your question is, can the county sheriff on his own initiative increase the cost of housing prisoners arrested by the city for the violation of:
(1) state law?
(2) municipal ordinances?
The answer is no with respect to both (1) and (2).
Prisoners In County Jail Arrested by City Officers For The Violation Of State Law
Tennessee Attorney General's Opinion 85-167 says that:
In the absence of a statute or contract providing for such, it is the opinion of this office that a municipality is not liable for the costs incurred where a person is arrested and placed in a county jail by a city police officer for committing an offense which is a violation of a city ordinance, a violation of a state law, or a violation of both a city ordinance and a state law.
The same opinion further says that:
Tennessee does not impose liability by statute upon municipalities for costs arising in connection with the enforcement of municipal offenses or state laws. In the absence of such statutory assessment of liability, none exists. It should also be noted that there is no general statutory authority in Tennessee providing for incarceration of municipal offenders in county jails. There is no prohibition, however, to the city and county entering into a contract providing for the incarceration of municipal offenders. [Also see OAG 84-308.]
Tennessee Attorney General's Opinion U89-29 also opines that there is no statutory authority for counties to charge cities a jailer's fee for prisoners jailed by a city judge for state law violations. The logic of that opinion undoubtedly applies to prisoners jailed by any judge for state law violations.
However, certain state statutes do provide for the setting of jail fees by the county legislative governing body. Those statutes have special implications for prisoners arrested by municipal officers for DUI.
Tennessee Code Annotated, section 8-26-105(a) provides that:
The county legislative body or governing body of each county in the state shall have the authority to pass a resolution fixing the amount of jailers' fees which may be applied to misdemeanant prisoners. The rate fixed shall apply to such prisoners confined in the county jail or workhouse or workhouses, but not meeting the conditions required for a state subsidy under title 41, chapter 8. [Emphasis is mine.]
Most state prisoners arrested by municipal officers on state charges would fit into the above category. That category would also include prisoners arrested by city officers for DUI, which is exclusively a state offense under Tennessee Code Annotated, section 55-10-307. Tennessee Code Annotated, section 55-10-403(2) provides a jail penalty and fine for DUI. But it also provides for the remission by a municipality to the county of a portion of the fine imposed upon a person for DUI, to cover the cost of incarceration by the county of a prisoner arrested by a municipality, up to the amount of the fine imposed, and says that, "Such reimbursement shall be in the same amount as is provided by Section 8-26-105, and shall not in any event be less than the actual cost of maintaining such persons and shall be reimbursed in the manner provided by Section 8-26-106." [Emphasis is mine.] Reimbursement "in the manner provided by Section 8-26-106, includes the setting of the jailers' fees by the county legislative body." In fact, Section 8-26-106 goes on to reiterate how the jailers' fees are set for the keeping of state prisoners for reimbursement purposes:
Upon the adoption by the county legislative body of a resolution fixing jailer's fees, it is made the duty of the county clerk to promptly transmit to the judicial cost accountant a certified copy of said resolution and the judicial cost accountant shall allow jailers’ fees for that particular county for state prisoners at the amount fixed by the resolution on the same terms as the county according to the provisions of section 8-26-105.
The establishment of jailers' fees for state prisoners (including DUI offenders) arrested by municipal officers is a legislative function performed by the county commission, not the sheriff.
(2) Prisoners In County Jail Arrested by City Officers for the Violation of Municipal Ordinances
As indicated above, Tennessee Attorney General's Opinions 85-167 opines that a municipality is not liable for county jail fees for prisoners arrested by municipal officers either on state or municipal charges, in the absence of a state statute or contract. However, Tennessee Attorney General's Opinions 84-308 and 85-167 and 90-94 also opine that there is no statutory authority for counties to hold prisoners arrested by municipal officers for municipal ordinance violations. For those reasons, if there is no contract between the your city and county on that subject, the city is not liable to the county for any jail fees.
If the city wants the county to hold such prisoners, it would have to enter into a contract with the county for the latter to do so. Obviously, most counties would not enter into such contract unless a county jail fee of some sort were a part of the contract. But that fee would also apparently be set by the county, not the sheriff.
I have enclosed the above Tennessee Attorney General's Opinions.
Sidney D. Hemsley
Senior Law Consultant