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AGO Opinion 97039

Payment to Counties for Holding Inmates Convicted of Felonies
Opinion 97039

DATE: August 4, 1997

SUBJECT: Payment to Counties for Holding Inmates Convicted of Felonies

REQUESTED BY: Senator Roger Wehrbein, Chairman,

Appropriations Committee

WRITTEN BY: Don Stenberg, Attorney General

Laurie Smith Camp, Deputy Attorney General

You have asked a number of questions regarding the obligation

of the state to reimburse counties for the cost of maintaining

inmates who have been convicted of offenses "punishable by

imprisonment" in facilities under the jurisdiction of the Nebraska

Department of Correctional Services. [DCS].

A recitation of applicable statutory provisions will precede

our discussion of the issues raised in your letter.

Neb. Rev. Stat. § 28-105 (1995) provides in part:

All sentences of imprisonment for Class IA, IB, IC, ID, II,

and III felonies and sentences of one year or more for Class

IV felonies shall be served in institutions under the

jurisdiction of the Department of Correctional Services.

Sentences of less than one year shall be served in the county

jail. . . .

Neb. Rev. Stat. § 28-106 (1995) provides in part:

Sentences of imprisonment in misdemeanor cases shall be served

in the county jail, except that in the following circumstances

the court may, in its discretion, order that such sentences be

served institutions under the jurisdiction of the Department

of Correctional Services:

(a) If the sentence is for a term of one year upon the

conviction of a Class I misdemeanor or for a combined term of

one year or more in the event of conviction of more than one

misdemeanor offense; [or]

(b) If the sentence is to be served concurrently with the

term for conviction of a felony. . . .

Neb. Rev. Stat. § 29-1002 (1995) provides in part:

The cost of keeping and maintaining any prisoner after his or

her conviction of any offense punishable by imprisonment in a

Department of Correctional Services adult correctional

facility, wherever he or she may be kept and confined, shall

be paid by the state according to the rate which may be

established by law at the time when such services may be

rendered or expenses incurred.

Neb. Rev. Stat. § 29-1003 (1995) provides in part:

The Director of Administrative Services shall allow the

account for the costs as provided for in Section 29-1002, and

draw warrants upon the treasury therefor, upon being furnished

with a certified copy of the judgment or sentence of the court

under which such convict is in prison, and an account verified

by affidavit, showing where and how long such convict has been

kept, pursuant to such sentence.

Neb. Rev. Stat. § 47-119 (Cum. Supp. 1996) provides:

[S]tate prisoner shall mean a person who has been convicted of

a felony and has started to serve the sentence imposed under

such conviction.

Neb. Rev. Stat. § 47-121 (1993) provides in part:

The county board of each county. . . confining state prisoners

within its jails shall receive $3.50 per day for boarding such

prisoners. . . . The sheriff or county board of corrections

shall, on the first day of January, April, July, and October

of each year, make a report in writing to the Director of

Administrative Services of the number of state prisoners in

custody in such county for the last three months before making

its report, when committed, and for what time, [and] the

amount due the county for boarding such prisoner or prisoners.

. . . Thereupon the director shall quarterly draw his or her

warrant upon the State Treasurer for the amount due to the

county treasurer of the county, and the amount drawn shall be

credited to the general fund of the county.

Basic principles of statutory construction established by the

Nebraska Supreme Court require that we (1) look at the statutory

objective to be accomplished, problem to be remedied, or purpose to

be served, and then place on the statute a reasonable construction

which best achieves its purpose, rather than a construction that

will defeat the purpose; and (2) conjunctively consider and

construe all statutory components to determine the intent of the

legislature, so that different provisions are consistent,

harmonious and sensible. See, e.g., State v. Joubert, 246 Neb. 287

(1994); Anderson v. Nashua Corp., 246 Neb. 420 (1994); and In Re

Guardianship & Conservatorship of Bloomquist, 246 Neb. 711 (1994).

Legislative history is not available to assist us in

ascertaining the legislature's purpose in enacting §§ 29-1002, 29-

1003, 47-119 and 47-121 because the core language of the statutes

originated in the legislature's earliest years. The legislative

history of bills making technical revisions to these statutes over

the years does not explain the legislature's original intent and

purpose. DCS annual reports inform us that Nebraska inmates were

confined in county jails and federal facilities in Nebraska's first

years of statehood. It is likely that the language in §§ 29-1002,

29-1003, 47-119 and 47-121 originated at a time when many inmates

who were convicted of felonies and sentenced to be imprisoned for

one year or more served their time in county jails due to a lack of

state correctional facilities.

Sections 28-105 and 28-106 were enacted as part of the

Nebraska Criminal Code in 1977 and reflect the more modern intent

of the legislature.

Although others may reach a different conclusion, we find that

the reasonable and sensible construction of the above statutes is

that inmates who are sentenced to serve a term of imprisonment of

one year or more may be confined in facilities under the

jurisdiction of DCS at the expense of the state. Such inmates

would include those sentenced to serve one year or more in prison

for felony convictions, Class I misdemeanor convictions,

consecutive misdemeanor convictions, misdemeanor convictions to be

served concurrently with felony convictions, and misdemeanor

sentences to be served consecutive to felony convictions. Inmates

sentenced to terms of imprisonment of less than one year are to be

confined in county jails at the expense of the county. Such

inmates would include those convicted of misdemeanors or felonies

having a sentence or combined sentence totaling less than one year.

The fact that an inmate has been sentenced to probation or to a

term of confinement for less than one year in a county jail upon

conviction of a felony would not cause the state to be responsible

for the cost of "keeping and maintaining" the inmate. Our

conclusion is reinforced by the fact that the legislature has

appropriated no funds for payment to counties under § 47-121, and

the fact that the counties have historically acquiesced in bearing

the cost of maintaining convicted felons who are sentenced to serve

less than one year in the county jails.

Neb. Rev. Stat. § 29-2401 (1995) provides that it is the

responsibility of the county sheriff to transport an inmate to DCS

when the inmate has been sentenced to that department. So, any

delay in the transfer of an inmate from a county jail to DCS would

be the responsibility of the county, and the state should not be

liable for the county's costs of "keeping and maintaining" any such

inmate. Your letter does not suggest that DCS has refused to

accept inmates from the counties when the inmates have been

sentenced to DCS.

It is recognized that there are times when inmates who have

been sentenced to DCS may be placed temporarily in a county jail,

just as there are times when a county inmate may be placed in DCS

facilities for "safekeeping." Neb. Rev. Stat. § 29-1001 (1995)

purports to give the person who has custody of an inmate the power

to place the inmate in any secure and convenient place of

confinement in the state. This statute can be construed to

authorize counties to place their inmates in DCS facilities. It

can also be construed to authorize DCS to place its inmates in

county facilities. In the past, DCS has billed counties for

"safekeeping" of county inmates on a contractual basis. If DCS

were to place one of its inmates in a county jail pursuant to § 29-

1001, and absent any agreement between DCS and the county for

reimbursement, the county would be entitled to bill the State of

Nebraska for $3.50 per day for boarding such inmates pursuant to §

47-121. If there were no funds appropriated by the legislature for

payment to the county under § 47-121, then the county would have

the right to submit a miscellaneous claim to the State Claims Board

seeking reimbursement under Neb. Rev. Stat. §§ 81-8,294 et seq.




Attorney General

Laurie Smith Camp

Deputy Attorney General