July 17, 1990

Mark A. Moreno
Hughes County State's Attorney
P.O. Box 8
Pierre, SD 57501

OFFICIAL OPINION NO. 90-28

Compensation for maintenance of a parole violator housed in the county jail

Dear Mr. Moreno:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS:

In December 1986, inmate X was sentenced to the State Penitentiary as a result of his conviction in Yankton County for aggravated assault. The assault occurred while inmate X was housed at the trusty unit located in Yankton, South Dakota. Subsequent thereto, inmate X was released on parole and placed under the supervision of a parole officer in Pierre, South Dakota. Having reason to believe that the purposes of parole were not being met, the parole officer directed that inmate X be apprehended and detained in the Hughes County Jail pending a preliminary hearing to determine whether his parole should be revoked. The Hughes County Auditor thereafter sought reimbursement from Yankton County for the cost incurred in detaining inmate X. Upon the refusal of Yankton County to remit payment, the Hughes County Auditor sought reimbursement from the Department of Corrections for maintaining inmate X at its jail facility. The Department Corrections also declined to pay for those expenses.

Based upon these facts, you have asked the following question:

QUESTION:

Is the Department of Corrections or some other state agency responsible for the maintenance of inmate X pending his return to the State Penitentiary as a parole violator?

In researching this matter, I find that the Department of Corrections certainly had the power to order that inmate X be confined in the Hughes County Jail pending the revocation of his parole. State statute provides that:

If the purposes or objects of parole are not being served, the department of corrections and its parole agents may use any necessary means to establish discipline, arrest, or take custody and control of the parolee pending the issuance of a warrant by the executive director.

SDCL 24-15-19. Statute, however, does not provide how the expenses incurred by an inmate detained in a county jail pending his return to the state penitentiary are to be allocated. Absent some specific statutory mandate, I am unable to conclude that the Department of Corrections is obligated to pay the expenses incurred by Hughes County.

It is well established that a governmental entity is not liable for, and may not pay, expenses which are not specifically within its statutory obligation. An expenditure of public funds requires legal authorization. As a rule, money cannot be drawn from the treasury of a state except in pursuance of a specific appropriation made by law. 63(a) Am.Jur.2d Public Funds, 37 (1984). State statute specifically provides that "no payment shall be made and no obligation shall be incurred against any appropriation unless such payment or obligation has been authorized as provided by law." SDCL 4-8-2. Statute further provides that:

When the Legislature passes any law directing any officer, board or commission to do anything which might legitimately come under his or its jurisdiction and control which requires the expenditure of money and which Legislature fails to provide the necessary funds therefore by appropriation or otherwise, it shall not be competent for such officer, board, or commission to use any other funds under his or its control appropriated for a specific purpose by which such fund shall be depleted, nor shall any funds appropriated by the Legislature for a specific purpose be used for any purpose other than that for which it was appropriated.

SDCL 4-8-4. While the Department of Corrections had the authority to order confinement in the Hughes County Jail, the Legislature has obviously not seen fit to appropriate funds for the purpose of reimbursing said county for the cost incurred in housing inmate X. Had the Legislature intended that the cost of maintenance of such prisoners be borne by the Department of Corrections, it would have imposed the obligation by statute and appropriated funds for that express purpose.

Nor may Hughes County recover based on the concept of an implied contract. One simply cannot overcome the strict requirements of statute by claiming that a contract exists by virtue of estoppel. The courts in this State have consistently held that it would be contrary to public policy to allow one to evade statutory provisions which have been enacted for the protection of the public merely by arguing implied contract theories. Simpson v. Tobin, 367 N.W.2d 757 (S.D. 1985); Minor v. Sully Buttes School District, 347 N.W.2d 48 (S.D. 1984); Bak v. Jones County, 210 N.W.2d 65 (S.D. 1973). The reasoning used to support the conclusions in the aforementioned cases is persuasive. Therefore, despite the fact that inmate X was detained at the request of the Department of Corrections, no contract existed.

In light of the foregoing, I can reach but one conclusion. Under the circumstances present in the instant case, the obligation to pay the expenses incurred must rest with the county.

Respectfully submitted,

ROGER A. TELLINGHUISEN
ATTORNEY GENERAL

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