Kansas Attorney General Opinion 2012-010

April 18, 2012
ATTORNEY GENERAL OPINION NO. 2012- 10
Gary E. Thompson
Linn County Counselor
P.O. Box 184
Mound City, KS 66056
Re: 	Counties and County Officers–Sheriff–Budget; Charge and Custody of Jail
Counties and County Officers–County Treasurer–Duty to Receive and
Disburse Moneys
Synopsis: 	A sheriff must pay over to the county treasurer fees collected by the
sheriff’s department for performing an inspection of vehicle identification
numbers. 	A 	sheriff 	may 	charge 	cities 	for 	the 	costs 	of 	incarcerating
prisoners jailed on municipal charges in an amount equal to that provided
by the county for the incarceration of county prisoners. A sheriff may
release a prisoner jailed on municipal charges upon the prisoner signing a
valid notice to appear if the prisoner has neither posted bond nor been
arraigned by the municipal court within 48 hours. A sheriff may not decline
to incarcerate persons brought to a county jail by the authority of city law
enforcement officers under any circumstances. Cited herein: K.S.A. 2011
Supp. 8-116a; 12-4209; 12-4212; 12-4213; K.S.A. 12-4302; 19-506; 19-
811; 19-814; 19-1903; 19-1930; 28-175
* 	* 	*
Dear Mr. Thompson:
As County Counselor for Linn County, you ask for our opinion regarding whether a
sheriff’s department may maintain a bank account outside the county financial system
and whether a sheriff may charge cities for use of the county jail and establish certain
policies regarding when city prisoners may be released from or admitted into jail.

Gary Thompson
Page 2
At issue are several policies and procedures that the sheriff has established. In your
letter, you state that the sheriff’s department maintains a bank account outside the
county financial system. The sheriff’s department collects fees for performing vehicle
identification number (VIN) inspections and then deposits these fees into this account;
such funds are disbursed as the sheriff sees fit. You ask whether the proper procedure
is for the county treasurer to deposit such fees into county accounts.
You also note that the sheriff has established the following policies regarding persons
held in the county jail at a city’s request and ask our opinion as to the sheriff’s authority
to institute such policies:
1. 	The sheriff charges the city a fee for booking the prisoner, fingerprinting the
prisoner, and providing daily housing for the prisoner.
2. 	If a prisoner held on municipal court charges does not post bond and the
municipal court does not arraign the prisoner within 48 hours, the sheriff releases
the prisoner after the prisoner signs a document entitled “notice to appear.”
3. 	The jail will not incarcerate persons for failure to appear or for failure to satisfy
judgment when the underlying charge is a traffic infraction.
We first address the issue of whether a county sheriff may hold fees for VIN inspections
in a bank account outside the county financial system. The Kansas Highway Patrol
(KHP) is responsible for performing VIN inspections on certain vehicles. 1 The KHP
superintendent may designate a county law enforcement agency to perform such
inspections. 2 If KHP designates a city or county law enforcement agency to perform VIN
inspections, KHP retains ten percent of the inspection fee, and “the balance shall be
paid to the law enforcement agency that conducted the inspection.”3
Your question requires an examination of K.S.A. 28-175, which states in relevant part:
County officers and employees shall receive no compensation, tips, fees,
mileage or salaries, which compensation, tips, fees, mileage or salaries
are or shall be paid to such officer or employee directly or indirectly by
reason of his or her performance of the duties or obligations of such
county 	office 	or 	employment, 	unless 	such 	compensation, 	tips, 	fees,
mileage or salaries are specifically allowed to them by law. All such
compensation, tips, fees, mileage or salaries received, directly or indirectly
by them or from their respective offices from any source whatsoever,
which compensation, tips, fees, mileage or salaries would not have been
received except for such officer's or employee's performance of the duties
or obligations of such county office or employment . . . not specifically
1 K.S.A. 2011 Supp. 8-116a.
2 K.S.A. 2011 Supp. 8-116a(d)(1).
3 K.S.A. 2011 Supp. 8-116a(d)(2).

Gary Thompson
Page 3
authorized to be retained by them, shall be paid over . . . to the county
treasurer . . . . All such compensation, tips, fees, mileage and salaries
shall be placed by said treasurer to the credit of the county general fund.4
As a threshold matter, we note that performing VIN inspections is not a statutory duty or
obligation of a county sheriff.5 However, when the sheriff contracts with KPH to have the
sheriff's department as the designee that performs VIN inspections, it is our opinion that
such inspections become a duty or obligation of the sheriff for the purposes of K.S.A.
28-175. 6
Several prior Attorney General Opinions have examined the application of K.S.A. 28-
175 as it relates to the retention of fees collected by county officers. In two instances,
we opined that in certain circumstances a county officer may personally retain fees paid
for his or her services; 7 however, those opinions were based upon factual situations not
comparable to the situation you describe in your letter.
This 	office 	has 	consistently 	opined 	that 	county 	officers 	who 	collect 	fees 	for 	the
performance of official duties or obligations must pay such fees to the county treasurer
pursuant to K.S.A. 28-175 in the absence of clear, express statutory authorization to
retain such fees. 8 Because the legislature has not amended K.S.A. 28-175 since those
opinions were issued, 9 we believe the reasoning therein continues to be persuasive.
K.S.A. 2011 Supp. 8-116a authorizes VIN inspection fees to be paid to a county law
enforcement agency for the performance of such inspections, but the statute does not
specifically authorize the county law enforcement agency to retain such fees. As such,
we find that K.S.A. 28-175 is dispositive, and we opine that a sheriff may not retain VIN
inspection fees in an account outside the county financial system. The sheriff must pay
such fees to the county treasurer and the Board of County Commissioners may later
appropriate such fees to the sheriff’s department.10
We next address the sheriff's policies regarding prisoners being held on municipal
charges, 	beginning 	with 	a 	sheriff’s 	authority 	to 	charge 	cities 	for 	the 	costs 	of
incarcerating city prisoners. The sheriff has the charge and custody of the county jail
and is responsible for the manner in which it is kept. 11 The sheriff has statutory authority
4 Emphasis added.
5 K.S.A. 19-811 through 19-814. See also K.S.A. 2011 Supp. 8-116a.
6 We have been advised by the KHP that such designations are formalized by a contract between the
KHP and the designee in which the designee agrees to perform VIN inspections in exchange for receiving
a portion of inspection fees pursuant to K.S.A. 2011 Supp. 8-116a(d)(2).
7 Attorney General Opinion No. 79-121 (a sheriff may personally retain compensation for service as a
volunteer firefighter because such service is not a statutory duty or obligation of the sheriff), 98-23
(legislative history of K.S.A. 32-1053 indicated an intent to authorize a county or district attorney to
personally retain fees for prosecuting violations of wildlife and parks laws).
8 Attorney General Opinion Nos. 79-117; 80-69; 81-122; 89-105; 90-7; 97-34.
9 K.S.A. 28-175 was last amended by L. 1977, Ch. 112, § 14.
10 K.S.A. 19-506.
11 K.S.A. 19-811, 19-1903.

Gary Thompson
Page 4
to charge cities for maintenance of city prisoners in an amount equal to that provided by
the county for the maintenance of county prisoners. 12 K.S.A. 19-1930(a) states:
The sheriff shall receive all prisoners committed to the sheriff’s or jailer’s
custody by the authority of the United States or by the authority of any city
located in such county and shall keep them safely in the same manner as
prisoners of the county until discharged in accordance with law. The
county maintaining such prisoners shall receive from the United States or
such city compensation for the maintenance of such prisoners in an
amount equal to that provided by the county for maintenance of county
prisoners and provision shall be made for the maintenance of such
prisoners in the same manner as prisoners of the county. The governing
body of any city committing prisoners to the county jail shall provide for the
payment of such compensation upon receipt of a statement from the
sheriff of such county as to the amount due therefor from such city.
Your letter does not suggest that the amount charged by the sheriff to cities in Linn
County for the maintenance of city prisoners exceeds the amount allowed by law.
However, we note that in determining the daily amount that a county may charge for the
maintenance of city prisoners, a county may include “overhead” expenses such as
personnel, administration, facility operation and maintenance, in addition to direct
expenses such as food and clothing. 13 Thus, so long as the booking fee, fingerprinting
fee and daily housing fee charged by the Linn County Jail are of an amount equal to the
cost incurred by the county for the booking, fingerprinting and housing of county
prisoners, we opine that such fees are allowable under K.S.A. 19-1930(a).
Next, we consider a sheriff’s authority to release prisoners who do not post bond on
their municipal offenses and the municipal court does not arraign such prisoners within
48 hours. The Kansas Code for Municipal Courts (“the Code”) states in relevant part:
(a) Any person arrested by a law enforcement officer shall be taken
immediately by the law enforcement officer to the police station of the
city or the office in the city designated by the municipal judge. At that
time, the person shall have the right to post bond for the person's
appearance . . . except as hereinafter provided.
. . .
(c) Any person held in custody pursuant to the provisions of this section,
and who has not made bond for such person's appearance, may be
held in custody until the earliest practical time for such person's
appearance in municipal court upon a warrant being issued by the
municipal court in accordance with K.S.A. 12-4209, and amendments
thereto.
12 Id.
13 Attorney General Opinion No. 2001-42.

Gary Thompson
Page 5
(d) Any person who remains in custody for 48 hours pursuant to the
provisions of this section after arrest, and who is awaiting a first
appearance before a municipal judge in the absence of a warrant
being issued, shall be released on the person's personal recognizance.
Bond shall be set within 18 hours of the person being placed in
custody. 14
You state that the Linn County Sheriff has adopted a policy whereby the sheriff releases
a prisoner held on municipal court charges who has neither posted bond nor been
arraigned by the municipal court upon the prisoner signing a document entitled “notice
to appear.”. 	Assuming that such policy only applies to those persons for whom no
warrant has been issued, and that the “notice to appear” signed by persons released
from jail pursuant to this policy is consistent with the Code’s personal recognizance
provisions, 15 we opine that such policy is consistent with K.S.A. 2011 Supp. 12-4213(d)
and therefore lawful.
We next consider a sheriff’s authority to decline to incarcerate persons brought to the
jail by city law enforcement officers for failure to appear or for failure to satisfy judgment
when the underlying charge is a traffic infraction. K.S.A. 19-1930(a) states that the
sheriff shall receive all prisoners committed to the sheriff’s custody. We previously
examined this statute in Attorney General Opinion No. 2007-039, in which we opined
that the duties imposed upon a sheriff under K.S.A. 19-1930(a) are mandatory rather
than discretionary:
This statute obviously requires the county sheriff or jailer to receive and
take custody of all prisoners committed to the sheriff or jail by a city law
enforcement officer. After consideration of all the legal authority cited
herein, we have not located any authority supporting a county sheriff's out-
right blanket refusal to take custody of persons arrested by city law
enforcement officers and presented to the sheriff or jailer at a county jail,
no matter the circumstances.
It has been suggested that Attorney General Opinion No. 2007-039 concluded that a
sheriff is only required to accept into custody persons who are arrested on state
charges or persons who are arrested on municipal charges and for whom a warrant has
been issued. Having reviewed Attorney General Opinion No. 2007-039, we find no
support for this suggestion. Rather, as noted above, that opinion clearly states that the
sheriff 	must 	take 	into 	custody 	all 	prisoners 	committed 	to 	the 	jail 	by 	a 	city 	law
enforcement officer, no matter the circumstances.
14 K.S.A. 2011 Supp. 12-4213.
15 K.S.A. 12-4302: “Notwithstanding the provisions of K.S.A. 12-4301, a law enforcement officer may
release an accused person from custody without requiring security for his or her appearance, and shall
release such accused person from custody without requiring security for the appearance, pursuant to any
rule or order of the municipal judge.”

Gary Thompson
Page 6
It also has been suggested that, if a warrant is erroneously issued for a traffic infraction,
when in fact the warrant was intended to be issued for failure to appear for a traffic
infraction, then the sheriff may decline to incarcerate the person because no warrants
may be issued for traffic infractions. 16 We believe this suggestion is without merit. A law
enforcement officer has the authority to arrest a person if the officer has a warrant
commanding that the person be arrested. 17 A sheriff is required by law to receive all
prisoners committed to the sheriff’s or jailer’s custody by the authority of any city. 18 A
sheriff has no statutory authority to decline to incarcerate a person based upon the
sheriff’s finding that an arrest warrant is inadequate.
Having reviewed de novo the authorities cited in Attorney General Opinion No. 2007-
039, we opine that the reasoning therein continues to be sound as it relates to the duty
of sheriffs to receive all persons committed to the sheriff’s custody.
Sincerely,
Derek Schmidt
Kansas Attorney General
Sarah Fertig
Assistant Attorney General
DS:AA:SF:ke
16 K.S.A. 2011 Supp. 12-4209(e).
17 K.S.A. 12-4212(a)(1).
18 K.S.A. 19-1930(a).