Kansas Attorney General Opinion 2017-004

February 2, 2017
ATTORNEY GENERAL OPINION NO. 2017- 4
Sheriff Laurie Dunn
Osage County Sheriff's Office
131 W. 14th
P.O. Box 639
Lyndon, Kansas 66451
Re: 	Probate 	Code—Commitment 	of 	Sexually 	Violent 	Predators—
Commitment of Sexually Violent Predators; County Reimbursed for
Costs; Responsibility for Costs of Medical Care and Treatment
Legislature—Claims Against the State—Submission of Certain Claims to
Joint 	Committee 	on 	Special 	Claims 	Against 	the 	State; 	County
Reimbursed for Costs Relating to Determination of a Civil Commitment
Proceeding Pursuant to the Kansas Sexually Violent Predator Act
Synopsis: 	A county responsible for costs relating to the custody of a person awaiting
determination of a civil commitment proceeding pursuant to the Kansas
Sexually Violent Predator Act may seek reimbursement for such costs
and expenses from the sexually violent predator expense fund or by
presenting a claim against the state pursuant to K.S.A. 2016 Supp.59-
29a04(e). 	Such county may not seek reimbursement for medical costs
from the sexually violent predator expense fund or by presenting a claim
against 	the 	state. 	K.S.A. 	2016 	Supp.59-29a04(f) 	requires 	the
governmental entity having custody to seek reimbursement of medical
costs only from the person against whom a petition has been filed for
such costs. Cited herein: K.S.A. 46-907; K.S.A. 2016 Supp. 59-29a02;
59-29a03; 59-29a04; 59-29a04a; 59-29a05.
* 	* 	*

Sheriff Laurie Dunn
Page 2
Dear Sheriff Dunn:
As Sheriff for Osage County, Kansas, you request our opinion on whether a county
may request reimbursement for costs and expenses, including medical costs, relating
to the custody of a person 1 awaiting determination of a civil commitment pursuant to
the Kansas Sexually Violent Predator Act (Act).2
It may be helpful to briefly discuss the civil commitment process under the Act in order
to understand the potential custody costs for which a county may seek reimbursement.
If a determination is made that a person may be a sexually violent predator (SVP), 3 the
Attorney General may file a petition in the county where the person was convicted of
or charged with a sexually violent offense. 4 If the judge determines there is probable
cause to believe that the person named in the petition is an SVP, 5 the judge shall direct
that the person be taken into custody and detained in such county’s jail until a
determination is made that the person is an SVP subject to commitment under the Act. 6
Within 72 hours after a person is taken into custody, or as soon as reasonably
practicable or agreed upon by the parties, such person will be given notice of and an
opportunity to contest probable cause at a hearing in person. 7 If the probable cause
determination is made, the court shall order the person to be transferred to Larned
State Security Hospital (LSSH) for an SVP evaluation. 8 	If the LSSH evaluation
determines the person may be an SVP, the person is transported by the sheriff to the
county jail where the petition was filed to await the trial. 9
Thus, under the civil commitment process pursuant the Act, the sheriff may have
custody costs that include transportation costs, security and control over the person,
food, housing and potentially medical costs from the time a judge determines there is
probable cause to believe that the person named in the petition is an SVP through the
trial or other disposition of the petition.
With this background information, we now will discuss your question. 	The county
where the person was convicted of or charged with a sexually violent offense is the
county responsible for the costs and expenses incurred related to determining whether
a person may be an SVP. 10 	That county shall be reimbursed for certain costs and
1 “‘Person’ means an individual who is a potential or actual subject of proceedings under [the Kansas
Sexually Violent Predator Act].” K.S.A. 2016 Supp. 59-29a02(g).
2 K.S.A. 2016 Supp. 59-29a01 et seq.
3 See K.S.A. 2016 Supp. 59-29a03(a), (b), (f), and (g).
4 K.S.A. 2016 Supp. 59-29a04(a).
5 K.S.A. 2016 Supp. 59-29a05(a).
6 K.S.A. 2016 Supp. 59-29a05(a)(1).
7 K.S.A. 2016 Supp. 59-29a05(b).
8 K.S.A. 2016 Supp. 59-29a05(d).
9 K.S.A. 2016 Supp. 59-29a05(a) and (d).
10 See generally, Matter of Raborn, 259 Kan. 813, 818 (1996).

Sheriff Laurie Dunn
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expenses pursuant to subsections (e) and (f) of K.S.A. 2016 Supp. 59-29a04. Those
provisions state:
(e) Whenever a determination is made regarding whether a person may
be a sexually violent predator, the county responsible for the costs
incurred, including, but not limited to, costs of investigation, prosecution,
defense, juries, witness fees and expenses, expert fees and expenses
and other expenses related to determining whether a person may be a
sexually violent predator, shall be reimbursed for such costs by the office
of the attorney general from the sexually violent predator expense fund.
The attorney general shall develop and implement a procedure to provide
such reimbursements. If there are no moneys available in such fund to
pay any such reimbursements, the county may file a claim against the
state pursuant to article 9 of chapter 46, of the Kansas Statutes
Annotated, and amendments thereto.
(f) The person against whom a petition is filed shall be responsible for
the costs of the medical care and treatment provided or made accessible
by the governmental entity having custody, and the governmental entity
having custody may seek reimbursement from the person against whom
a petition has been filed for such costs.
In determining whether custody costs are other expenses related to determining
whether a person may be a sexually violent predator pursuant to K.S.A. 2016 Supp.
59-29a04(e), we turn to the rules of statutory construction.
[T]he fundamental rule to which all other rules are subordinate is that the
intent of the legislature governs if that intent can be ascertained. When
language is plain and unambiguous, there is no need to resort to statutory
construction. An appellate court merely interprets the language as it
appears; it is not free to speculate and cannot read into the statute
language not readily found there. 11
In subsection (e), the phrase “including, but not limited to,” is plainly unrestrictive
language intended to illustrate examples of costs for which a county may seek
reimbursement. 	That conclusion is bolstered by the Legislature’s use of the catchall
phrase at the end of the list that provides that “other expenses related to determining
whether a person may be a sexually violent predator” are also authorized for
reimbursement.12 	In 	other 	words, 	K.S.A. 	2016 	Supp. 	59-29a04(e) 	provides 	a
nonexclusive list of costs and expenses that shall be paid by the Attorney General to
11 Neighbor v. Westar Energy, Inc., 301 Kan. 916, 918-19 (2015) (internal quotation marks and citations
omitted).
12 K.S.A. 2016 Supp. 59-29a04(e) (emphasis added).

Sheriff Laurie Dunn
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the county responsible for the costs from the sexually violent predator expense fund, 13
if there is money in the fund. 	If there is no money in the sexually violent predator
expense fund, the county responsible for the costs may present a claim against the
state pursuant to K.S.A. 46-907. 14
The costs and expenses relating to the 	custody of the person while awaiting
determination of a civil commitment proceeding pursuant to the Sexually Violent
Predator Act is not listed in K.S.A. 2016 Supp. 59-29a04(e) and may be added to this
nonexclusive list if custody costs were determined to be included within the term “other
expense.” Thus, we must apply the rules of statutory interpretation. The term “other”
in the term “other expenses” is not defined in the statute, so we ascertain its meaning
from its ordinary definition. 15 “Other” is commonly understood to mean “a different or
additional one” 16 or “further; additional.” 17 	Additionally, the term “other expenses” is
modified by the phrase that follows it – “related to determining whether a person may
be a sexually violent predator.” 	Because the Attorney General is responsible for
authorizing payments made from the sexually violent predator expense fund, 18 	the
County, or in this case the Sheriff, must articulate to the Attorney General how the
costs and expenses being sought for reimbursement are related to the determination
of whether the person is an SVP. 19
Because custody costs and expenses are incurred by the Sheriff’s Office as a result of
the filing and trial on the petition to determine whether the person is an SVP, we
conclude these costs and expenses may be “other” expenses within the meaning of
K.S.A. 2016 Supp. 	59-29a04(e), and the county responsible for the costs may be
reimbursed from the sexually violent predator expense fund or file a claim against the
state.
However, that general rule does not control your question of whether medical costs
may be reimbursed from the sexually violent predator expense fund or by presenting
a claim against the state, because a more specific statutory provision governs
reimbursement of medical costs. We note that the language in subsection (f) of K.S.A.
2016 Supp. 59-29a04 is plain and unambiguous; it does not require interpretation. This
provision does not authorize recovery of medical costs from the sexually violent
predator expense fund or by presenting a claim against the state. 	Rather, K.S.A. 2016
13 K.S.A. 2016 Supp. 59-29a04a.
14 See K.S.A. 46-907 which states, “[a]ll claims proposed to be paid from the state treasury or any special
fund of the state of Kansas, which cannot be lawfully paid by the state or any agency thereof except by
an appropriation of the legislature shall be submitted to the joint committee on special claims against
the state before final action thereon is taken by either house of the legislature.” See also K.S.A. 2016
Supp. 59-29a04a(b) (“[a]ll expenditures from the sexually violent predator expense fund shall be made
in accordance with appropriation acts . . . .”).
15 State v. Raschke, 289 Kan. 911, 914 (2009).
16 https://www.merriam-webster.com/dictionary/other, accessed January 24, 2017.
17 https://en.oxforddictionaries.com/definition/other, accessed January 24, 2017.
18 K.S.A. 2016 Supp. 59-29a04a.
19 K.S.A. 2016 Supp. 59-29a04(e).

Sheriff Laurie Dunn
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Supp.59-29a04(f) 	requires 	the 	governmental 	entity 	having 	custody 	to 	seek
reimbursement of medical costs only from the person against whom a petition has
been filed for such costs.
Sincerely,
Derek Schmidt
Kansas Attorney General
Athena E. Andaya
Deputy Attorney General
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