Who sets the background-check fee for a Virginia concealed handgun permit application: the county board of supervisors or the sheriff?

Plain-English summary

Lunenburg County Clerk of the Circuit Court Gordon Erby asked the AG who sets the fee for a Virginia concealed handgun permit (CHP) application: the county board of supervisors, the sheriff, or someone else? And if the sheriff sets the background-check fee, does the sheriff need an order from the circuit court to change it?

AG Mark Herring's plain-language answer: only the sheriff (or whichever local law enforcement agency conducts the background investigation) and the Virginia State Police have any discretion over CHP fees. The county board of supervisors has no role; the circuit court has no role. Section 18.2-308.03 breaks the fees down as:

• $10 mandatory clerk fee. The clerk "shall" charge $10 for processing the complete application. No discretion.
• Up to $35 sheriff (or local LE agency) fee. The local law enforcement agency conducting the background investigation "may" charge a fee not to exceed $35 to cover the cost of the investigation, inclusive of FBI assessments.
• Up to $5 State Police fee. The Virginia State Police "may" charge a fee not to exceed $5 for processing.
• Total cap: $50. In no event may the total exceed $50.

The use of "may" for the sheriff and State Police fees, contrasted with "shall" for the clerk's $10, gives those two agencies discretion over their fees within the statutory ceilings. Board of Supervisors v. Weems (1952) and Masters v. Hart (1949) confirm the standard reading: "may" means permission, not compulsion.

For the second question (does the sheriff need a circuit court order to change the fee), the AG implicitly answers no: the statute gives the sheriff discretion within the $35 ceiling, with no court-order requirement. The opinion notes that, prior to 1995 amendments, § 18.2-308(K) had let the circuit court set a fee up to $25. Senate Bill 744 in 1995 (1995 Va. Acts ch. 829) transferred the fee-setting authority to the clerk, local LE agency, and State Police.

The opinion focused on counties (like Lunenburg) where the sheriff's office is the sole county-level law enforcement agency. The same analytical framework would apply to cities or counties with a police department; the police department is the "local law-enforcement agency" doing the investigation.

Currency note

This opinion was issued in 2020. 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.

Background and statutory framework

Section 18.2-308 generally prohibits carrying concealed weapons, with enumerated exceptions. Section 18.2-308.01 exempts CHP holders. Section 18.2-308.02 sets out the application process: any person 21 or older applies to the clerk of the circuit court for their jurisdiction. The clerk accepts the complete application (including proof of competence per § 18.2-308.02), the circuit court consults with the sheriff or police department and receives a Central Criminal Records Exchange report (§ 18.2-308.04(B)), and unless the applicant is disqualified, the permit issues within 45 days (§ 18.2-308.04(C)). If the 45 days lapse without a decision, the applicant gets a 90-day de facto permit (§ 18.2-308.05).

Section 18.2-308.03 covers fees. The clerk "shall" charge $10 (mandatory). The local law enforcement agency conducting the background investigation "may" charge a fee not to exceed $35 (discretionary up to ceiling). The Virginia State Police "may" charge a fee not to exceed $5 (discretionary up to ceiling). The aggregate cap is $50.

The interpretive rule the opinion applies: "may" means permission, not compulsion (Weems; Masters). So the General Assembly granted the sheriff and State Police discretion to set their fees within the statutory ceilings, with no involvement from the board of supervisors or the circuit court. Section 18.2-308.06 covers nonresident applications, which run through a different process and are outside this opinion's scope.

Section 19.2-388 establishes the Central Criminal Records Exchange, which receives and files criminal history record information used in the background investigation. "Criminal history record information" is defined at § 9.1-101.

Footnote 11 (in the original) traces the legislative history: pre-1995 § 18.2-308(K) had let the circuit court set a CHP fee up to $25. The 1995 amendments (Senate Bill 744; 1995 Va. Acts ch. 829) transferred the fee-setting authority to the three entities the current statute names: clerk (mandatory $10), local LE agency (up to $35), and State Police (up to $5).

Common questions

Q: Can a county board of supervisors set or change CHP fees as part of the county budget?
A: No. The statute does not give the board any role. The fees are set by the entities named in § 18.2-308.03.

Q: Can a circuit court order the sheriff to charge a specific amount under the $35 ceiling?
A: The opinion does not give the court an explicit role in setting the amount. The statute gives the sheriff (as the local LE agency conducting the investigation) discretion. The opinion's answer to the Clerk's second question is implicitly "no court order needed."

Q: Does the sheriff have to charge the full $35?
A: No. The statute says "may charge a fee not to exceed $35." The sheriff has discretion to charge any amount up to and including $35 (or to charge nothing).

Q: Can the sheriff publish a fee schedule for CHPs?
A: Yes. As the entity with statutory discretion, the sheriff sets the fee. A publicly announced schedule is a normal way to exercise that discretion.

Q: Is the FBI fee separate?
A: No. Section 18.2-308.03(A) says the local law enforcement agency's fee "shall be inclusive of any amount assessed by the U.S. Federal Bureau of Investigation (FBI) for providing criminal history record information," and the agency forwards the FBI's share to the State Police.

Q: What if the application is denied?
A: The opinion doesn't address refunds. Practically, fees pay for processing; statutory text controls whether refunds are required on denial.

Q: Are there fee exemptions?
A: Yes. Section 18.2-308.03(B) exempts certain categories of applicants. The opinion's footnote 7 references this. The opinion does not list the categories, but they are spelled out in the statute (typically certain law enforcement officers and veterans).

Q: What's the 45-day window about?
A: Once the clerk accepts a complete application, § 18.2-308.04(C) requires the circuit court to issue the permit (or determine disqualification) within 45 days. If neither happens, § 18.2-308.05 grants the applicant a 90-day de facto permit. The fees are tied to the application process, not the 45-day clock specifically.

Citations

The opinion rests on §§ 18.2-308 through 18.2-308.06, § 9.1-101, § 19.2-388, the legislative-history reference to 1995 Va. Acts ch. 829 (Senate Bill 744), and the "may"-as-permissive cases Board of Supervisors v. Weems (1952) and Masters v. Hart (1949).

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2020/19-055-Erby-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

February 21, 2020

The Honorable Gordon F. Erby
Clerk, Circuit Court of Lunenburg County
11435 Courthouse Road
Lunenburg, Virginia 23952

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

Issues Presented
You ask whether a county board of supervisors is authorized to set the fee for a concealed handgun permit under § 18.2-308.03 of the Code of Virginia, or whether this fee is established by the sheriff. You also ask whether an order of the circuit court is required to change the fee, if it is set by the sheriff.[1]

Applicable Law and Discussion
Section 18.2-308 prohibits any person from carrying a concealed weapon with certain enumerated exceptions.[2] This prohibition does not apply to an individual carrying a concealed handgun with a valid concealed handgun permit.[3] An application for a concealed handgun permit may be made by any person at least 21 years of age to the clerk of the circuit court for the jurisdiction in which he resides.[4] Upon accepting a complete application, including proof of competence with a handgun as required in § 18.2-308.02, the circuit court "shall consult with either the sheriff or police department of the county or city and receive a report from the Central Criminal Records Exchange."[5] Unless the applicant is disqualified, the concealed handgun permit shall be issued within 45 days of receipt of the completed application.[6]

Pursuant to § 18.2-308.03, permit fees are paid after the clerk accepts the application as complete.[7] The clerk "shall" charge a processing or issuance fee of $10, and the local law-enforcement agency conducting the background investigation "may" charge a fee not to exceed $35 to cover the cost of the investigation.[8] In addition, the Virginia State Police may charge a fee not to exceed $5 to cover any costs it incurs in processing the application. In no event shall the total amount assessed for processing a concealed handgun permit application exceed $50.[9]

Thus, as applied to your inquiry, state law unambiguously permits only the sheriff conducting the background investigation and the State Police to exercise discretion in setting fees for concealed handgun permits[10] and does not grant any such authority to the county's board of supervisors or the circuit court.

Conclusion
Based on the plain language of § 18.2-308.03, it is my opinion that discretionary fees relating to the processing of a concealed handgun permit may be set, in part, by the sheriff conducting the background investigation and, in part, by the State Police, according to the provisions of the statute. The county board of supervisors and the circuit court of the county in which the permit is to be issued are not statutorily authorized to set any portion of the fees.[11]

With kindest regards, I am,

Very truly yours,

Mark R. Herring
Attorney General

1. Given the wording of your inquiry, this response is focused on scenarios involving counties, such as Lunenburg County, that have a sheriff's office as the sole county-level law-enforcement agency.

2. VA. CODE ANN. § 18.2-308 (Supp. 2019).

3. VA. CODE ANN. § 18.2-308.01 (2014).

4. VA. CODE ANN. § 18.2-308.02 (Supp. 2019) (if the person is a member of the United States Armed Forces and stationed outside Virginia, he may make application in the Virginia county or city in which he is domiciled). Non-resident applications made under § 18.2-308.06 are governed by a distinct process and are therefore outside the scope of this opinion.

5. VA. CODE ANN. § 18.2-308.04(B) (Supp. 2019). The Central Criminal Records Exchange is established to receive, classify, and file criminal history record information and other records listed in § 19.2-388 of the Code of Virginia. The term "criminal history record information" means "records and data collected by criminal justice agencies on adult individuals consisting of identifiable descriptions and notations of arrests, detentions, indictments, informations, or other formal charges, and any disposition arising therefrom." VA. CODE ANN. § 9.1-101 (Supp. 2019).

6. VA. CODE ANN. § 18.2-308.04(C) (Supp. 2019). Failure to issue the permit or determine that the applicant is disqualified within the 45 day period gives rise to a 90-day de facto permit. VA. CODE ANN. § 18.2-308.05 (2014).

7. The individuals listed in § 18.2-308.03(B) are exempt from the payment of these fees.

8. VA. CODE ANN. § 18.2-308.03(A) (2019). Any fee charged by the local law-enforcement agency shall be inclusive of any amount assessed by the U.S. Federal Bureau of Investigation (FBI) for providing criminal history record information, and the local law-enforcement agency shall forward the amount assessed by the FBI to the State Police.

9. Id.

10. Unless a contrary intent is manifest in a statute, the use of the word "may" means permission and not compulsion. See Bd. of Supvrs. v. Weems, 194 Va. 10, 15, 72 S.E.2d 378, 381 (1952) (quoting Masters v. Hart, 189 Va. 969, 979, 55 S.E.2d 205, 210 (1949)).

11. Prior to amendments in 1995, § 18.2-308(K) allowed the circuit court to charge a fee, not to exceed $25, for processing an application for a concealed handgun permit; however, Senate Bill 744 transferred this authority to the clerk of the circuit court (mandatory $10 fee), the law-enforcement agency conducting a background investigation (permitted fee not to exceed $35), and the State Police (permitted fee not to exceed $5). 1995 Va. Acts ch. 829.