Does Virginia's $25 jail processing fee under § 15.2-1613.1 apply to anyone who got booked before trial, or only to defendants jailed after conviction?

Plain-English summary

Newport News' circuit court clerk asked whether § 15.2-1613.1 (which lets a locality impose by ordinance a processing fee up to $25 on "any individual admitted to a county, city, or regional jail following conviction") covers a defendant who underwent pretrial jail processing or only one who was sent to jail after conviction. Cuccinelli's answer turned on the statute's plain language: the fee applies only to a person "admitted to jail ... following conviction." A pretrial booking does not satisfy that, and a defendant who, after conviction, gets a sentence that does not involve jail time (suspended, time-served, no incarceration) is not admitted to jail following conviction and owes no fee.

The fee, when properly assessed, becomes part of court costs collected by the clerk, deposited with the treasurer, and used to defray the costs of processing arrested persons into local or regional jails. The statute allocates the proceeds between sheriff's offices, regional jails, and police departments depending on where the processing costs were incurred.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What does "following conviction" mean here?
The conviction must come first; the admission must come after. A pretrial booking happens before any conviction, so it does not count.

What if the defendant served pretrial time and is then sentenced to "time served"?
No fee is assessed under § 15.2-1613.1. The defendant is not "admitted to the ... jail following conviction." The statute is keyed to a post-conviction admission, not to pre-conviction booking that is later credited.

What about a defendant who is sentenced to additional jail time and re-enters?
Yes, the fee applies. "Re-admitted" is mentioned in the AG's conclusion as covered by the statute's plain language.

Can a locality charge the fee without an ordinance?
No. The statute authorizes localities to enact an ordinance imposing the fee. Absent a local ordinance, there is no authority to charge.

Background and statutory framework

Section 15.2-1613.1 authorizes localities to enact an ordinance imposing a processing fee not to exceed $25 on any individual admitted to a county, city, or regional jail following conviction. The fee is ordered as part of court costs collected by the clerk, deposited with the county/city treasurer, and used to defray processing costs at the sheriff's office, regional jail, or police department (allocations depend on where the costs are incurred).

Reading the statute by its plain language, the operative phrase "following conviction" means the admission must come after conviction. Pretrial admissions do not trigger the fee.

Citations

• Va. Code § 2.2-505 (authority for official advisory opinions)
• Va. Code § 15.2-1613.1 (jail processing fee, by local ordinance)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2011/11-091-Davis.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II

July 22, 2011

Attorney General

The Honorable Rex A. Davis
Clerk of the Circuit Court
2500 Washington Avenue
Newport News, Virginia 23607-4307

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Dear Mr. Davis:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented
You inquire whether § 15.2-1613.1 allows a processing fee to be assessed only for defendants who are processed or re-processed into a jail following conviction, for service of an active sentence, or whether the fee applies to any defendant who underwent jail processing prior to conviction.

Response
It is my opinion that § 15.2-1613.1 authorizes the fee to be assessed only when a person is admitted, or re-admitted, to jail after conviction. If a person is convicted, but is not admitted or readmitted to jail following conviction, the fee may not be assessed.

Applicable Law and Discussion
The General Assembly has authorized localities to enact an ordinance imposing

a processing fee not to exceed $25 on any individual admitted to a county, city, or regional jail following conviction. The fee shall be ordered as a part of court costs collected by the clerk, deposited into the account of the treasurer of the county or city and shall be used by the local sheriff's office to defray the costs of processing arrested persons into local or regional jails. If processing costs are incurred by a regional jail rather than a local sheriff's office, the fees collected pursuant to such ordinance may be used by the regional jail to defray the costs of processing arrested persons. Where costs are incurred by a sheriff's office and a regional jail the fees collected pursuant to such ordinance may be divided proportionately as determined by the local governing body or bodies, between the sheriff's office and the regional jail. Where costs are incurred by a police department for booking or fingerprinting services, the fees collected pursuant to such ordinance may be divided proportionately as determined by the local governing body or bodies, between the sheriff's office and the police department.

"In deciding the meaning of the statute, we must consider the plain language that the General Assembly employed when enacting this statute." Here, the first sentence is the key. It provides that a locality may enact an ordinance authorizing recovery of a fee for "any individual admitted to a county, city or regional jail following conviction." To assess the fee, it is not sufficient that the individual was admitted to the jail before conviction. Rather, the individual must be "admitted to jail ... following conviction." In situations where an individual spent some time in jail pretrial, but is not sent back to the jail "following conviction," either because his sentence did not involve any jail time, he received a suspended sentence, or he was sentenced to time served, the individual is not "admitted to the ... jail following conviction" and no fee can be assessed.

Conclusion
Accordingly, it is my opinion that § 15.2-1613.1 authorizes the fee to be assessed only when a person is admitted, or re-admitted, to jail after conviction. If a person is convicted, but is not admitted or readmitted to jail following conviction, the fee may not be assessed.

With kindest regards, I am

Kenneth T. Cuccinelli, II
Attorney General