Frequently asked questions for Sheriffs.
The simple answer is “yes” – but 911 revenues are restricted. Any 911 revenue generated pursuant to A.C.A. 12-10-318 through 12-10-321 must be spent only in direct connection with the provision of 911 services.
A.C.A. 12-10-323 outlines the purposes for which 911 revenues can be spent. They are:
Even though the list of authorized expenditures of 911 revenues has been expanded and liberalized in recent years – the list is not “all inclusive”. Any expenditure of 911 revenue generated by A.C.A. 12-10-318 through 12-10-321 is prohibited if it is not identified in the list above 1 – 7. [A.C.A. 12-10-323(b)]
As in the case of other restricted revenue funds, appropriations of funds from other sources – such as the General Fund – may supplement the authorized expenditures of A.C.A. 12-10-323 and may fund other activities of the 911 public safety communication center not associated with the provision of emergency services. [A.C.A. 12-10-323(c)]
Arkansas Code Annotated 12-41-502 say, “The county sheriff of each county in this state shall have the custody, rule, and charge of the jail within his or her county and all prisoners committed in his or her county,…..”. Also, A.C.A. 14-14-802(a)(2) requires, “A county government, acting through the county quorum court, shall provide, through ordinance, for……..law enforcement protection services and the custody of persons accused or convicted of crimes”. There are other state laws and court case decisions that indicate that a county government should not only have a county jail, but should properly fund the jail operation.
County jail operations are one of the largest financial burdens on county governments in Arkansas – but, there are several revenue sources for the operation of a county jail that can be secured. The two largest and most common revenue sources are a dedicated sales tax (must be approved by a vote of the electorate) and general funds of the county. Other sources of jail revenue include housing fees for housing prisoners of other government jurisdictions, including state prisoners and 309’s; commissary fees; and pay-for-stay fees. In most counties, the sheriff’s office may allocate up to 50% of the commissions from prisoner telephone services for the maintenance and operation of the county jail in accordance with A.C.A. 12-41-105(b)(2). Two other sources of revenue for jail operations are the $20 booking and administrations fee and the local fine that can be levied by the quorum court to help defray the cost of incarcerating prisoners.
Let’s take a closer look at those last two sources of jail revenue mentioned and the laws that regulate them –
Act 117 of 2007 amended Arkansas Code Annotated 12-41-505 [Expense and support of the jail] to add a booking and administration fee of $20 to anyone convicted of a felony or a Class A misdemeanor. The fee is assessed in one of two ways. It is assessed upon the conviction of a person and included in the judgment entered by the court – or if the court suspends imposition of a sentence on the person or places the person on probation and does not enter a judgment of conviction, the court is to impose the booking and administration fee as a cost.
The “booking fee” is to be deposited into a special fund within the county treasury to be used exclusively for the maintenance, operation, and capital expenditures of a county jail or regional detention center. The “special fund” can be a newly created special revenue fund – or if the county operates the jail out of a “special revenue” fund it can be credited to that fund (i.e. County Jail Fund, County Detention Center Fund, etc.).
Act 209 of 2009 amended A.C.A. 16-17-129 so that a city and/or county could, by ordinance, levy an additional fine not to exceed $20 to be collected from defendants in District Court to be used to defray jail expenses.
A.C.A. 16-17-129, as amended, reads in part:
(a)(1)(A) In addition to all fines now or as may hereafter be provided by law, the governing body of each town or city in which a district court is located may by ordinance levy and collect an additional fine not to exceed twenty dollars ($20.00) from each defendant upon each conviction, each plea of guilty or nolo contendere, or each bond forfeiture in all cases in the first class of accounting records as described in A.C.A. 16-17-707.
(b)(1) In addition to all fines now or as may hereafter be provided by law, the quorum court of each county may by ordinance levy an additional fine not to exceed twenty dollars ($20.00) to be collected from each defendant upon each conviction, each plea of guilty or nolo contendere, or each bond forfeiture in all cases in the first and second class of accounting records as described in A.C.A. 16-17-707. A county ordinance enacted under this subdivision (b)(1) applies to all district courts in the county.
As a result of this amended state law, cities may now collect up to $20.00 in fine money on accounting one records, and counties may collect up to $20.00 in fine money on accounting one and two records. Accounting one records are “city cases” and accounting two records are “county cases”. Counties should assess this fine in district court on both city and county cases. However, it can only be assessed by the passage of an ordinance to levy the fine.
The revenue collected by the assessment of this fine can be used for: (1) the construction, maintenance, and operation of the city, county, or regional jail; (2) deferring the costs of incarcerating county prisoners held by a county, a city, or any entity; (3) the transportation and incarceration of city or county prisoners; (4) the purchase and maintenance of equipment for the city, county, or regional jail; and (5) training, salaries, and certificate pay for jailers and deputy sheriff’s. The only exception to these uses is that sums collected from this fine on “city cases” cannot be used for training, salaries or certificate pay for deputy sheriffs.
As an additional note of explanation – since the question has been raised – this additional fine allowed under A.C.A. 16-17-129 to be used to help defray jail expenses should apply also to a seatbelt conviction.
Under A.C.A. 27-37-706, any person violating the mandatory seatbelt use law shall be subject to a fine not to exceed $25, and when a person is convicted and pleads guilty, or forfeits bond, no other court costs or fees shall be assessed. However, the fines allowed by Act 209 of 2009 (A.C.A. 16-17-129) can be applied to seatbelt convictions because additional fines are not the same as court costs and fees. Attorney General Opinion No. 2003-117 states, “The statute prohibits the imposition of additional court costs and fees,” but it “does not prohibit additional fines. Courts have traditionally distinguished between fines, which are intended to be punishment for the offense in question, and court costs or fees.” This same logic was reiterated in Attorney General Opinion No. 2009-148 issued in October 2009 after Act 209 of 2009 was passed and went into effect.
The County Sheriff’s office budget is probably the largest office budget of the county constitutional officers. Although the Sheriff’s office has the ability to generate quite a bit of revenue it will not be enough to cover the cost of running the office.
The County Sheriff may be the county official designated in your county by the quorum court to collect fines [A.C.A. 16-13-709 Responsibility for collection]. Of course, many circuit and district court fines remain at the local level and are remitted to the general fund.
The County Sheriff has several “Special Revenue” funds – such as the Communications Facility and Equipment Fund [A.C.A. 21-6-307]; the Boating Safety Enforcement Fund or Emergency Rescue Fund [A.C.A. 27-101-111]; the Drug Enforcement Fund [A.C.A. 14-21-201 through 14-21-203]; the Drug Control Fund [A.C.A. 5-64-505, A.C.A. 29-30-160, A.C.A. 12-17-105]; and possibly others that may have been established by county ordinance.
Fees to be charged by the County Sheriff are set forth in A.C.A. 21-6-307. The Sheriff fees are divided 75% to County General and 25% to the Communications Facility and Equipment Fund. The 25% amount does not have to be remitted to the county treasury – and can be retained by the Sheriff. In fact, in strict accordance with the law the Sheriff maintains this money and fund and it is not subject to appropriation by the quorum court [AG Opinion #2002-008 and AG Opinion #2003-074]. The funds, however, are restricted to certain types of expenditure and the fund is subject to audit by the Division of Legislative Audit.
However, in many counties the Communication Facility and Equipment Fund is on the books of the County Treasurer. When the Communications Facility and Equipment Fund first became a part of the law in the 1980’s (was first called the Sheriff’s Radio and Equipment Repair and Replacement Fund – changed to current name by Act 662 of 1995) the Division of Legislative Audit did not think it was a good idea for the Sheriff to maintain control of the fund and suggested that they remit it to the County Treasurer (that was before Enron and when they made those types of suggestions). There were some Sheriffs also that thought it was not a very good idea for them to maintain this money in their office. Therefore, in many counties – contrary to what the law says – the Communications Facility and Equipment Fund is on the books of the County Treasurer. In such case, the fund is a part of the county treasury and is subject to quorum court appropriation [A.C.A. 14-14-1102(b)(2)(C)(i) and Arkansas Constitution, Article 16, Section 12].
At the discretion of the Sheriff, any funds in the Communications Facility and Equipment Fund not needed by the Sheriff may be transferred to the county general fund.
The 25% of Sheriff fees is not the only source of revenue for the Communications Facility and Equipment Fund. One hundred percent (100%) of the commissions derived from prisoner telephone services provided in the county jail are to be credited to the Communications Facility and Equipment Fund. However, the Sheriff may allocate up to 50% of the commissions deposited to the fund for the maintenance and operation of the county jail. [Note: Commissions from prisoner telephone services are addressed in A.C.A. 12-41-105 and the provisions of that code do not apply to Benton, Pulaski and Washington counties – the three counties in Arkansas with populations in excess of 175,000.]
Another source of “special revenue” for the County Sheriff comes from boat registration fees. A percentage of those fees are credited to the County Aid Fund and remitted to the County Treasurers in the proportions thereof as between the respective counties that the total of the fees produced from each county bears to the total of the fees produced from all counties. [A.C.A. 27-101-111]
Upon receipt of these funds the County Treasurer credits the funds to the Boating Safety and Enforcement Fund – if the Sheriff has established a patrol on the waterways within the county. Otherwise, the funds are credited to the County Emergency Rescue Fund for use exclusively by either the county or the cities within the county, or both, for operating and maintaining emergency rescue services.
If neither the county nor any of the cities within the county operate emergency rescue services the fees should be deposited into the Game Protection Fund for use by the Arkansas State Game and Fish Commission.
A county may provide the Sheriff with another Special Revenue Fund – a Drug Enforcement Fund. For this fund to be established the quorum court must pass an ordinance establishing the fund and set a maximum balance for the fund – not to exceed $10,000. There are restrictions on how the fund can be used. Everything there is to know about the Drug Enforcement Fund is in Act 362 of 1997 (which has never been amended) and codified in A.C.A. 14-21-201 through 14-21-203. These codes/laws are so straightforward that there are no AG Opinions addressing the meaning of these codes.
Another one of the Special Revenue Funds for use by the County Sheriff is the Drug Control Fund. Information concerning the Drug Control Fund is found in the rather extensive “Property Subject to Forfeiture” law which is codified as A.C.A. 5-64-505. Subdivision (i)(2) lays out the creation of the Drug Control Fund on the books of law enforcement agencies and prosecuting attorneys. The Drug Control Fund moneys come from the disposition of moneys in the Prosecutor’s Asset Forfeiture Fund as outlined in subdivision (i)(1). Moneys in the Drug Control Fund shall be used only “for law enforcement and prosecutorial purposes” – which is a rather broad definition of what the moneys can be used for. There are several Attorney General Opinions dealing with the Drug Control Fund.
In connection with the Drug Control Fund as established under A.C.A. 5-64-505 – at least two other codes are worth mentioning. They are:
Of course, another great expense to the county in the realm of law enforcement is the incarceration of prisoners in the county jail. There are a number of revenue sources for the operation of a county jail. I have addressed and delineated those in a separate “question and answer” segment of the Association of Arkansas Counties FAQ’s.