Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1969 No. 8 - Mar 10 1969
Attorney General Slade Gorton


The department of institutions presently has no authority, under the provisions of chapter 239, Laws of 1967 (chapter 39.34 RCW), or any other statute, to enter into a contract with a county for the temporary detention of county jail prisoners in any existing state correctional institution for convicted felons.

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                                                                  March 10, 1969

Honorable William R. Conte
Director, Department of Institutions
Institutions Building
Olympia, Washington 98501

                                                                                                                   Cite as:  AGO 1969 No. 8

Dear Sir:

            This is written in response to your request for an opinion of this office on a question which we paraphrase as follows:

            Is the department of institutions authorized, under the provisions of chapter 239, Laws of 1967 (the interlocal cooperation act), or any other statute, to enter into a contract with a county for the temporary detention of county jail prisoners in any existing state correctional institution for convicted felons?

            We answer this question in the negative for the reasons set forth in our analysis.


            In considering your question, we shall review, first, the present authority of the department of institutions to house prisoners in existing state correctional institutions absent any consideration of the interlocal cooperation act of 1967.  Then we will note the provisions of this 1967 act and discuss, briefly, the reason for their lack of utility in regard to the contract under consideration.

            As an agency of state government, the department of institutions is governed by the fundamental principle that such  [[Orig. Op. Page 2]] agencies have only those powers expressly given to them by statute or those which may be necessarily implied therefrom.  State ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 538, 304 P.2d 663 (1956); 43 Am.Jur., Public Officers, § 249.

            The authority of the department of institutions needs to be scrutinized with particular care in considering a question such as this, regarding the uses to which any of the state or county penal institutions can be put.  These various institutions have not been established for the generalized purpose of providing housing or shelter for all persons convicted of crimes or who may be otherwise in legal custody; rather, they each have been established as places of confinement for specified classes of crimes.  See, RCW 9.01.020, which provides as follows:

            "A crime is an act or omission forbidden by law and punishable upon conviction by death, imprisonment, fine or other penal discipline.  Every crime which may be punished by death or by imprisonment in the state penitentiary is a felony.  Every crime punishable by a fine of not more than two hundred and fifty dollars, or by imprisonment in a county jail for not more than ninety days, is a misdemeanor.  Every other crime is a gross misdemeanor."

            Consistent with this statute, the laws relating to each of the several existing state correctional institutions contain references to the specific categories of convicted felons who are to be incarcerated therein.  See, in general, chapter 72.08 RCW, relating to the state penitentiary; chapter 72.12 RCW, relating to the state reformatory; chapter 72.13 RCW, relating to the state correctional institution for male felons; and chapter 72.15 RCW, relating to the state correctional institution for women.1/

             [[Orig. Op. Page 3]]

            In addition to convicted felons who have been sentenced to confinement in one of these state correctional institutions, the department of institutions, acting through its director, has been granted express authority to provideby contract for the detention in existing state correctional institutions of certain prisoners who have been sentenced to confinement in some other institution.  However, these statutes relate only to federal prisoners and prisoners of other states or territories.  See, RCW 72.68.080 through   Moreover, the only existing statute authorizing the director of institutions to contract with a county for the detention of prisoners works only in the opposite direction.  We have reference to RCW 72.68.040, which contains authorization for contracts under which prisoners convicted of felonies and sentenced to the state penitentiary or reformatory may be  [[Orig. Op. Page 4]] detained in a county jail the exact converse of the matter here being considered.3/

             The final statute to be noted in considering the authority of the department of institutions to incarcerate various types of persons is RCW 9.95.062, which provides that an appeal by a defendant in a criminal action shall stay the execution of the judgment of conviction.  This statute has been construed by the court to mean that where a person is convicted of a felony and is sentenced to the state penitentiary, his filing of an appeal from the conviction stays the execution of judgment to the extent of precluding his transportation to the state penitentiary until the appeal has been finally disposed of; in the meantime, the prisoner has been regarded as having a right, enforceable by writ of habeas corpus, to remain in the county jail of the county in which he was tried (unless, of course, he has been allowed to go out on bail during this period).  See,Ex parte Jones, 2 Wash. 551, 27 Pac. 172 (1891); andIn re Norris, 26 Wash. 323, 67 Pac. 72 (1901).4/

             [[Orig. Op. Page 5]]

            Therefore, in summary, it seems readily apparent that no authority, express or implied, can be found in any of the existing statutes relating to the department of institutions or the state correctional institutions under its jurisdiction, for the temporary detention, pursuant to contract, of county jail prisoners in any such state institution.  We turn, then, to the possible applicability of chapter 239, Laws of 1967, known as the "interlocal cooperation act," with regard to the proposal in question.

            Section 4 of that act (RCW 39.34.030) authorizes public agencies (which term is defined in RCW 39.34.020 to include both state agencies and counties) to exercise their powers jointly under certain conditions; in addition, § 9 (RCW 39.34.080) contains the following provision:

            "Any one or more public agencies may contract with any one or more other public agencies to perform any governmental service, activity, or undertaking which each public agency entering into the contract is authorized by law to perform:Provided, That such contract shall be authorized by the governing body of each party to the contract.  Such contract shall set forth fully the purposes, powers, rights, objectives, and responsibilities of the contracting parties."

            We have previously considered the scope and utility of this act on other occasions; we have concluded that it does not authorize the exercise of any new substantive powers by public agencies.  See our opinion dated September 26, 1967, to the prosecuting attorney of Benton county, a copy of which is enclosed.  Therefore, since both the place and duration of confinement of persons convicted of the various classes of crime are specifically provided for by the several statutes which we reviewed in the first portion of this opinion, we must conclude that when the place of incarceration is  [[Orig. Op. Page 6]] once determined by or pursuant to law, any change in the place of confinement must, likewise, be affirmatively authorized by law.  For this reason, such a change cannot lawfully be the subject of a contractunless such contract is expressly authorized.

            We trust the foregoing will be of assistance to you.

Very truly yours,

Attorney General

Assistant Attorney General

Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/Under the provisions of RCW 72.13.120, codifying § 12, chapter 214, Laws of 1959, any male offender convicted of an offense punishable by imprisonment in the state penitentiary or the state reformatory, except an offender sentenced to death, is to be sentenced to imprisonment in a penal institution under the jurisdiction of the department of institutions without designation of the name of such institution.  He then is to be committed to a "reception and classification center" for classification, confinement and placement ". . . in such correctional facility under the supervision of the department of institutions as the director of institutions shall deem appropriate: . . ."

2/See, also, in the same vein, RCW 72.70.010, et seq., codifying the Western Interstate Corrections Compact.  We are also, of course, aware of RCW 72.64.100, codifying § 4, chapter 171, Laws of 1961, which authorizes the director of institutions to establish and operate regional jail camps, and provides in pertinent part:

            ". . . Subject to the rules and regulations of the director, and if there is in effect a contract entered into pursuant to rCW 72.64.110, a county prisoner may be committed to a regional jail camp in lieu of commitment to a county jail or other county detention facility."

            However, we are advised that no such "regional jail camps" have been established; hence, limiting our consideration of your question to existing facilities, this statute has no application.

3/This statute authorizes the director of institutions to contract with the federal government, another state, or any county for

            ". . . the detention in an institution or jail operated by such governmental unit, of prisoners convicted of a felony in the courts of this state and sentenced to a term of imprisonment therefor in a state correctional institution for convicted felons under the jurisdiction of the department of institutions. . . ."

4/Notably, either Senate Bill 185, or House Bill 124, presently pending before the 41st session of the state legislature, would, if enacted, alter this last-noted situation by adding a new section to chapter 36.63 RCW reading as follows:

            "Any person imprisoned in a county jail pending the appeal of his conviction of a felony and who has not obtained bail bond pending his appeal shall be transferred after thirty days but within forty days from the date judgment was entered against him to a state institution for felons designated by the director of the department of institutions:  PROVIDED, That when good cause is shown, a superior court judge may order the prisoner detained in the county jail beyond said forty days for an additional period not to exceed ten days."