Request By:
Mr. Frank H. McCartney
Fleming County Attorney
Courthouse
Flemingsburg, Kentucky 41041
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
A question has arisen as to whether or not it is required to have a matron for the jail, if the jaildoes not handle women prisoners. We assume you mean that women are not housed in the local county jail. You informed us that the local jail structure will presently not permit an appropriate segregation of male and female prisoners. Thus the fiscal court of your county has, pursuant to KRS 411.006(1)(b), contracted with Mason County to house the women prisoners who will be tried by courts in Fleming County. Such female prisoners will be detained in the Mason County jail.
KRS 71.060, as amended in 1982 (Ch. 385, § 28) effective July 1, 1982, reads:
"Any jailer may appoint not more than two (2) deputies and, with the approval of the fiscal court, may appoint admitional deputies at any time during the jailer's term of office. The jailer shall be liable on his official bond for the conduct of his deputies. The deputies shall have all the powers and be subject to the same penalties as the jailer. They may be removed at any time by the jailer.
(2) Any jailer may appoint a respectable woman to care for and have supervision over the female prisoners in the jail, subject to the orders of the jailer. The woman so appointed shall be called jail matron and shall receive a salary to be paid in the same manner as deputy county jailers. With the approval of the fiscal court, the jailer may appoint additional matrons at any time during the jailer's term of office.
Under KRS 71.060, the jailer is automatically entitled to two deputies and one matron. When the two subsections are read together and considered as a whole, we believe a matron should be considered a deputy, and could be one of the two automatic deputies. Johnson v. Frankfort & C.R.R., 303 Ky. 256, 197 S.W.2d 432 (1946).
First, under KRS 71.060(2) the appointment of a matron is permissive only. The statute says "Any jailer may appoint a respectable woman . . ." (Emphasis added). The word "may" is generally permissive. KRS 446.010(20). Thus a jailer may use his sound judgment as to whether a matron needs to be employed. Secondly, the express language of KRS 71.060(2) seems to suggest such an appointment as matron where there is a local jail. The statute says in part "a respectable woman to care for and have supervision over the female prisoners in the jail . . ." (Emphasis added). It seems reasonable to say that there can be no "jail matron" if there is no local jail. The jailer in Mason County may appoint a matron to look after the female prisoners in his jail (relating to both Fleming County and Mason County female prisoners) .
Finally, you inquire as to the transportation of such female prisoners. KRS 441.500 was amended in 1982 (Ch. 385, § 47). Subsection (3) was added to the statute. It reads:
" In the event that a county contracts with another county for the incarceration of its prisoners, the jailer of the county where the trial is to be held shall be responsible for transporting prisoners to and from the county where prisoners are incarcerated, except as otherwise agreed by contract. Any expense of such transportation shall be paid from the jail operating budget as provided in KRS 441.007 and 441.008." (Emphasis added).
Thus under the explicit language of subsection (3), relating specifically to contract jails, the jailer of the county where the trial is to be held is responsible for transporting prisoners to and from the county where the prisoners are incarcerated, and is likewise responsible for transporting such prisoners into the proper local courts of trial, unless otherwise agreed by contract. The general law contained in KRS 441.500(1)(c) provided generally that the sheriff " of the county where the prisoner is incarcerated" shall transport the prisoner as necessary, including transporting the prisoner to the trial court. (Emphasis added). Thus, if that general law were to govern in this contract situation, the sheriff of Mason County, which has contructed with Fleming County to detain Fleming County's women prisoners, would have the responsibility for transporting the women prisoners to Fleming County for trial. That, however, goes squarely against the intent of the legislature in adding subsection (3) to KRS 441.500, covering the contract situation. Thus the specific and later legislation must control. See Shannon v. Burke, 276 Ky. 773, 125 S.W.2d 238 (1939); and Butcher v. Adams, 310 Ky. 205, 220 S.W.2d 398 (1949) 400.
Even where no matron is appointed in your county (and the statute does not seem to envision such appointment where the jail detains no women), the jailer, or his deputies, of your county, in the absence of an agreement to the contrary, has the responsibility of transporting such female prisoners to the contract jail, and back where necessary, and, under KRS 441.500(3), transporting such women prisoners to the proper Fleming County courts.