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July 30, 1990

Mr. C.D. Kell
Jones County States Attorney
P.O. Box 485
Murdo, SD 57559

OFFICIAL OPINION NO. 90-30

Reimbursement for sheriff's expenses in retrieving fugitive who waives extradition

Dear Mr. Kell:

You have requested an official opinion in regard to the following factual scenario:

FACTS:

A person was charged in Jones County with a felony for issuing a no account check. This person fled the county and was subsequently arrested in Kansas. The fugitive then waived extradition to Jones County, South Dakota. After the waiver and based upon a 1946 Attorney General's Opinion, a set of extradition forms was completed and delivered to the Attorney General's Office. The Attorney General's Office did not submit the paper work to the Governor's Office for the purpose of getting a Governor's warrant because the fugitive had waived extradition to South Dakota.

Based upon the above facts, you have asked the following questions.

QUESTIONS:

1. Under the present law, can the sheriff collect mileage for traveling outside South Dakota for the purpose of bringing back a fugitive who has waived extradition?

2. Does the Sheriff have legal authority to transport the fugitive from and through the asylum state (Kansas) to the demanding state (South Dakota)?

IN RE QUESTION NO. 1:

Under SDCL 23-24-27 and the Uniform Criminal Extradition Act, a fugitive may forego his right to resist an extradition by a written agreement or by voluntarily returning to the demanding state.

SDCL 23-24-24 provides:

Any person arrested in this state charged with having committed any crime in another state or alleged to have escaped from confinement, or broken the terms of his bail, probation or parole may waive the issuance and service of the warrant provided for in 23-24-8 and 23-24-9 and all other procedure incidental to extradition proceedings, by executing or subscribing in the presence of a judge of any court of record within this state a writing which states that he consents to return to the demanding state; provided, however, that before such waiver shall be executed or subscribed by such person it shall be the duty of such judge to inform such person of his rights to the issuance and service of a warrant of extradition and to obtain a writ of habeas corpus as provided for in 23-24-12. (Emphasis supplied.)

SDCL 23-24-25 provides:

If and when consent under 23-24-24 has been duly executed it shall forthwith be forwarded to the office of the Governor of this state and filed therein. The judge shall direct the officer having such person in custody to deliver forthwith such person to the duly accredited agent or agents of the demanding state, and shall deliver or cause to be delivered to such agent or agents a copy of such consent.

SDCL 23-24-24 and 23-24-25 mirror Section 23a of the provisions of the Uniform Criminal Extradition Act. With this background of waiving the formality of the extradition process, we next look at the statutory parameters for reimbursement of sheriff's expenses.

SDCL 7-12-18(7) provides that the sheriff shall charge and remit travelling expenses of cars or planes at certain rates. The statute is silent regarding travelling expenses for securing fugitives. SDCL 7-12-21 provides:

For all necessary expenses incurred as a result of official travel outside the county, not specifically provided for in 7-12-18, reimbursement shall be made by the board of county commissioners upon presentation of properly itemized vouchers.

Based on the above statutes, I conclude that the sheriff can collect mileage for travelling outside South Dakota for the purpose of bringing back a fugitive who has waived formal extradition.

In 1946, a similar question was asked of my predecessor pertaining to county liability for mileage and travel expenses of the sheriff outside of South Dakota with a criminal warrant but without extradition papers. The answer back in 1946 was negative. Since that opinion was issued, the statutes upon which it was based have either been repealed or rewritten. For example, SDC 1939 12.1003(11) provided for the payment of expenses "in extradition matters." Notably at that time, there were no statutes allowing for the waiver of extradition papers. Subsequently in 1963, 12.1003(11) of the 1939 code, was repealed. In that same year 12.1007 (now SDCL 7-12-21) was amended to include payment for other necessary travel outside the county not enumerated in 12.1003. Moreover, the specific waiver provisions in the extradition chapter (SDCL 23-24-24 through 23-24-27) were implemented in 1953. Given the statutory changes of SDCL 23-24-24, 23-24-25 and 7-12-21, the sheriff can and must be reimbursed for bringing a fugitive back to South Dakota.

IN RE QUESTION NO. 2:

The Uniform Criminal Extradition Act and SDCL 23-24-25 require that the written waiver or consent to return to the demanding state be sent not only to the Governor, but to the appropriate agent in the demanding state. The waiver form should state that the fugitive agrees to accompany any law enforcement officer from the demanding state to such state and that all extradition procedures are voluntarily waived. By virtue of the written waiver and the underlying statutory authority, the agent of the demanding state has the authority to transport the fugitive from and through the asylum state.

Respectfully submitted,

ROGER A. TELLINGHUISEN
ATTORNEY GENERAL

RAT/jap

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