Can a Mississippi county hold someone in the county jail before their drug or alcohol civil commitment hearing if there's no treatment bed yet?

Plain-English summary

Representative Jansen Owen asked the AG a clean statutory question. Mississippi's mental-health civil commitment statute (Section 41-21-67(4)) lets a county hold someone in the county jail before their commitment hearing under certain circumstances. The drug and alcohol civil commitment statutes have no parallel provision. So when a court orders someone committed to a private drug or alcohol treatment facility but a bed is not immediately available, can the county jail them in the meantime?

The AG said no. There is no statutory authority to house drug or alcohol commitment respondents in the county jail pending commitment, whether the destination is a state or private facility.

The reasoning is structural. The mental-health civil commitment chapter (Section 41-21-61 et seq.) and the drug-and-alcohol commitment chapter (Section 41-30-1 et seq.) are separate statutory schemes. A 1994 Presley opinion held that "there is no indication that the commitment proceedings under Sections 41-21-61 et seq. and 41-30-1 et seq. are in any way interchangeable." Authority that exists in one chapter does not import to the other.

A 1986 Bustin opinion observed that "the legality of detaining respondents to commitment proceedings in jail will depend to a large extent on the facts surrounding each individual case." But absent a statutory hook, the default is no authority.

The AG looked at three specific statutes that might authorize jail housing for drug/alcohol respondents:

• Section 41-31-9: vests chancellors with power to enforce writs and direct sheriffs to deliver individuals to the proper institution. This authorizes transport, not jail housing.
• Section 41-32-7: lets a chancellor detain individuals at risk of fleeing, harming themselves, or harming others. But the detention authority is to "a chemical dependency unit, alcohol or drug unit, outpatient house or any other private facility for the treatment of chemically dependent persons." County jails are not on the list.

So no jail housing for drug or alcohol pre-commitment respondents. If a treatment bed is not immediately available, the county and the chancellor have to find another solution.

What this means for you

For Mississippi sheriffs and jail administrators

The opinion holds there is "no statutory authority to house respondents to drug and alcohol civil commitment petitions in the county jail pending commitment to either a state or private facility." It reads Section 41-31-9 as a transport authority (the sheriff takes the individual into custody and delivers him to the proper institution) that does not authorize detaining the person in the county jail, and Section 41-32-7's detention authority as running only to treatment facilities, not jails.

For chancery clerks and chancellors

Under the opinion, a drug or alcohol commitment order can direct delivery of the respondent to a treatment facility, but there is no statutory authority to hold the respondent in the county jail while awaiting a bed. The opinion distinguishes the mental-health scheme, where Section 41-21-67(4) provides limited pre-commitment jail housing; that authority does not carry over to the drug and alcohol statutes.

For Mississippi state legislators

The opinion identifies a structural difference: the mental-health civil commitment statute (Section 41-21-67(4)) authorizes limited pre-commitment jail housing, and the drug and alcohol commitment statutes contain no corresponding authority. The opinion does not recommend a particular fix; it reports that the authority does not currently exist.

For mental health administrators

The opinion treats the mental-health commitment chapter (Section 41-21-61 et seq.) and the drug and alcohol commitment chapter (Section 41-30-1 et seq.) as separate schemes that are not interchangeable, quoting the Presley opinion. Authority in one does not import into the other.

For families of respondents

Under the opinion, a county has no statutory authority to hold a drug or alcohol commitment respondent in the county jail while awaiting a treatment bed, whether the destination is a state or private facility. The commitment runs to a treatment facility, not the jail.

Common questions

Q: Can a county jail someone awaiting a drug or alcohol commitment bed?
A: No. The opinion's answer is that there is "no statutory authority to house respondents to drug and alcohol civil commitment petitions in the county jail pending commitment to either a state or private facility."

Q: The mental-health statute allows it, so why not the drug and alcohol statute?
A: The opinion treats them as separate, non-interchangeable schemes. It notes the mental-health statute (Section 41-21-67(4)) has limited pre-commitment jail authority and that there is "no corresponding authority" in the drug and alcohol statutes. It does not analyze the policy reasons for the difference.

Q: Doesn't Section 41-31-9 let the sheriff take the person into custody?
A: The opinion reads Section 41-31-9 as authorizing the chancellor to enforce writs, including directing the sheriff to take an individual into custody and deliver them to the proper institution, but holds "the sheriff is not authorized to detain the individual in the county jail."

Q: What about Section 41-32-7's detention authority?
A: The opinion holds that Section 41-32-7's authority to detain someone at risk of fleeing or of harming themselves or others "pertains only to a chemical dependency unit, alcohol or drug unit, outpatient house or any other private facility for the treatment of chemically dependent persons" and "does not extend to detainment in the county jail."

Q: Does it matter whether the facility is state-run or private?
A: No. The opinion's answer covers commitment "to either a state or private facility." In both cases the destination is the treatment facility, not the jail.

Background and statutory framework

Mississippi has separate statutory schemes for civil commitment:

• Mental health: Section 41-21-61 et seq.
• Drug and alcohol: Section 41-30-1 et seq.
• Chemical dependency-specific: Sections 41-31-9, 41-32-7

The two regimes have different procedures, different definitions of who can be committed, different facilities, and different transport and detention authorities.

Section 41-21-67 deals with the conduct of mental-health commitment hearings. Subsection (4) authorizes county-jail housing in limited circumstances pre-commitment. The authority is narrow but exists.

Section 41-31-9 vests chancellors with the power to enforce writs of commitment, including directing sheriffs to take individuals into custody and deliver them to the proper institution. The opinion reads this as a transport authority, not a jail-housing authority.

Section 41-32-7 lets the chancellor detain certain individuals at risk of fleeing, harming themselves, or harming others. The detention is to a treatment facility (chemical dependency unit, alcohol or drug unit, outpatient house, or any other private facility for chemically dependent persons). The list does not include county jails.

The 1986 Bustin opinion's "depend to a large extent on the facts surrounding each individual case" language might suggest some flexibility, but the AG's 2021 opinion reads it narrowly: the cited authorities (41-31-9 and 41-32-7) do not provide jail authority, so detention in a jail for a drug/alcohol commitment respondent has no statutory home.

The 1994 Presley opinion's "in no way interchangeable" framing closes the loop. Counties cannot import the mental-health jail authority into the drug/alcohol scheme.

The practical implication of the opinion is that, because the jail is not an authorized holding option for drug and alcohol commitment respondents, the commitment runs to a treatment facility and bed availability constrains the process. The opinion does not propose a remedy for delays; it answers only the statutory-authority question.

Citations and references

Statutes:

• Miss. Code Ann. § 41-21-61 et seq., mental-health civil commitment
• Miss. Code Ann. § 41-21-67(4), limited county-jail housing authority for mental-health pre-commitment
• Miss. Code Ann. § 41-30-1 et seq., drug and alcohol civil commitment
• Miss. Code Ann. § 41-31-9, chancellor's writ-enforcement and transport authority
• Miss. Code Ann. § 41-32-7, detention to private treatment facilities for chemically dependent persons

Prior AG opinions cited:

• MS AG Op., Bustin (Mar. 11, 1986), legality of jail detention depends on case-specific facts
• MS AG Op., Presley (Mar. 3, 1994), mental-health and drug/alcohol commitment chapters are not interchangeable

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2021/12/J.Owen-December-10-2021-Housing-Pre-Commitment-Drug-and-Alcohol-Abuse-Respondents-in-County-Jail.pdf

Original opinion text

December 10, 2021

The Honorable Jansen T. Owen
State Representative, District 106
Post Office Box 249
Poplarville, Mississippi 39470

Re: Housing Pre-Commitment Drug and Alcohol Abuse Respondents in County Jail

Dear Representative Owen:

The Office of the Attorney General has received your request for an official opinion.

Background

According to your request, Mississippi's civil commitment statute for those in need of mental health treatment provides for pre-commitment housing in the county jail under certain circumstances. Miss. Code Ann. § 41-21-67(4). However, in the statutes governing individuals in need of treatment for drug and/or alcohol treatment, there is no authority to house such individuals in the county jail pending their commitment to private treatment facilities. Miss. Code Ann. § 41-32-7.

Question Presented

Is there any statutory authority to house respondents to drug and alcohol civil commitment petitions in the county jail pending commitment to either a state or private facility?

Brief Response

No. There is no statutory authority to house respondents to drug and alcohol civil commitment petitions in the county jail pending commitment to either a state or private facility.

Applicable Law and Discussion

There is limited statutory authority to house pre-commitment individuals in need of mental health treatment in a county jail. Miss. Code Ann. § 41-21-67(4). However, there is no corresponding authority for housing respondents to drug and alcohol abuse commitment petitions in a county jail.

This office has previously opined that there is no indication that the commitment proceedings under Sections 41-21-61 et seq. and 41-30-1 et seq. are in any way interchangeable. MS AG Op., Presley at 1 (Mar. 3, 1994). Additionally, this office has stated that "the legality of detaining respondents to commitment proceedings in jail will depend to a large extent on the facts surrounding each individual case." MS AG Op., Bustin at 1 (Mar. 11, 1986).

While Section 41-31-9 vests the chancellor with the power to enforce writs, including those directed to the sheriff to take an individual into custody and deliver him or her to the director of the proper institution, the sheriff is not authorized to detain the individual in the county jail. The same holds true for Section 41-32-7, which authorizes a chancellor to detain an individual at risk of fleeing the jurisdiction, harming himself, or harming others. However, the authority to detain under Section 41-32-7 pertains only to "a chemical dependency unit, alcohol or drug unit, outpatient house or any other private facility for the treatment of chemically dependent persons" and does not extend to detainment in the county jail.

In conclusion, there is no statutory authority to house individuals in need of alcohol and drug treatment in the county jail while they await commitment at either a public or private treatment facility.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Misty Monroe
Misty Monroe
Special Assistant Attorney General