The Honorable Charlie Laster, State Senator District 17 submitted a request to request for an official Attorney General Opinion and asked:
Is the requirement for funding a county jail the same regardless of whether the jail is operated by the county sheriff or a public trust created for such purpose?
Funding the County Jail
You next ask whether the requirement for funding a county jail is the same whether the jail is operated by a public trust or operated by the sheriff. This question is closely related to the first, both of which we assume arose from funding issues and budget concerns over the amount and source of money needed by the county to fund the operation of the county jail, all the more controversial when the operator of the jail is a public trust.
State law requires each county, at its expense, to maintain or have access to a jail. Section 41 of Title 57 provides as follows:
Every county, by authority of the board of county commissioners and at the expense of the county, shall have a jail or access to a jail in another county for the safekeeping of prisoners lawfully committed.
A county may enter into contracts with private contractors to provide and operate jail facilities for the county.
Nowhere in the above statute does the Legislature make a distinction between funding a county jail operated by the sheriff and one operated by a public trust created for such purpose. It is an obligation of the county regardless of the operator of the jail, even if operated by a private contractor.
As discussed above in answering your first question, among the material differences between a constitutional duty and a statutory duty are the necessity and priority of funding by the county.
In describing the services of a county excise board, the watchdog of county finances, the Legislature expressed its intent on this issue by charging the county excise board with the duty of requiring adequate provision for performance of mandatory constitutional and statutory governmental functions under 68 O.S. 2001 & Supp.2007, §§ 3006 – 3007 in non-budget board counties, and 19 O.S. Supp.2007, § 1414 in budget board counties. See A. G . Opin. 07-6 (describing in detail non-budget board counties and budget board counties). Furthermore, a county must appropriate its income for all constitutional duties before it appropriates its income for statutory duties or any other expenditure as described in Protest of Kansas City Southern Railway Co., where the court stated:
Until an appropriation has been made for the performance of constitutional governmental functions, no appropriation may be made for the performance of legislative governmental functions or for other expenditures of public funds.
Id. 11 P.2d at 509.
Therefore, because the necessary maintenance of a jail is a constitutional duty, a county must first appropriate funds for such duty and any other constitutional duties before any county funds are expended for statutory duties or other functions.
We have already determined through a reading of pertinent case law that it is a constitutional duty to maintain a county jail, whether operated by the county sheriff or a public trust created for such purpose, which under 57 O.S. 2001, § 41 and 19 O.S. Supp.2007, § 513.2(A) makes the funding requirement the same regardless of the operator of the jail.
Therefore, not only is a county required to provide for a jail and fund its operation, regardless of whether the jail is operated by the sheriff or a public trust created for such purpose, it must also give priority to the funding to ensure performance of a constitutional duty.
It is, therefore, the official Opinion of the Attorney General that:
1. The maintenance of a county jail, either by the county sheriff or a public trust created for the purpose of operating a county jail, is a constitutional duty. See Smartt v. Bd. of County Comm’rs, 169 P. 1101, 1102 (Okla. 1917); Protest of Kansas City S. Ry. Co., 11 P.2d 500, 510 (Okla. 1932).
2. A county is required to provide for a jail and fund its operation, and give priority for the funding to ensure performance of a constitutional duty. Such funding requirement is the same regardless of whether the jail is operated by the county sheriff or a public trust created for such purpose. 57 O.S. 2001, § 41; 19 O.S. Supp.2007, § 513.2(A).
