Vol. 17 No. 9- County Board Of Supervisor’s Authority To Establish And/Or Run A Department Of Corrections

December 16, 2002

To: All Police Chiefs and Sheriffs

From: Martin J. Mayer


Recently our office was contacted and asked whether a County Board of Supervisors has the authority to establish a department of corrections. The inquiry further probed whether, if such power existed, it would include the authority to exercise all administrative powers associated with such department.California Government Code

§23013 is the source of the inquiry expressed above. It provides as follows: The board of supervisors of any county may, by resolution, establish a department of corrections, to be headed by an officer appointed by the board, which shall have jurisdiction over all county functions, personnel, and facilities….

However, the Government Code section above must not be read alone. In 1993, the people of the State of California enacted SB 911, an amendment to Section 26605 of the Government Code which now provides: Notwithstanding any other provision of law, except in counties in which the sheriff, as of July 1, 1993 is not in charge of and the sole and exclusive authority to keep the county jail and the prisoners in it, the sheriff shall take charge of and be the sole and exclusive authority to keep the county jail and the prisoners in it…. (emphasis added).

In sum, the sheriff of any county in the State of California (except Madera, Napa and Santa Clara), as of July 1, 1993 is in charge of, and the sole and exclusive authority of, the county jail. The amendment to Section 26605 precludes a board of supervisors from establishing and/or operating a department of corrections independent from the Sheriff.

Under well settled rules of statutory construction, when there is a conflict between two provisions, the later statute prevails over the one passed earlier. Furthermore, a specific enactment governs over a more a general one.

Amended section 26605 is unquestionably more specific than section 23013. Section 26605 specifically precludes other provisions of law and is in direct conflict with the provisions of 23013, which granted the county board of supervisors the sole and exclusive authority vested in the Sheriff by section 26605. Further, the amendments to Cal. Gov. Code § 26605 were enacted in 1993, some 36 years after Cal. Gov. Code § 23013.

Our analysis leads us to conclude that a County Board of Supervisors, lacks the ability to usurp the authority of the sheriff by creating its own department of corrections independent from the Sheriff. The intent of the legislature in amending Cal. Gov. Code. § 26605 was to provide for the exclusive control and authority over the county jails in the office of the sheriff and not the board of supervisors, as was formerly provided by statute.

As always, we urge that you confer with your agency’s legal advisor regarding this matter. If you have questions or wish to discuss this Memo in greater detail, please do not hesitate to communicate with Martin Mayer at 714-446-1400 or mjm@jones-mayer.com.

[The Law Offices of Jones & Mayer located in Fullerton, California focus its practice on representing the interests of public entities as its City Attorney, in labor negotiations, in defending tort litigation and civil rights litigation. Martin Mayer focuses his practice in the area of representing cities, counties and the State on matters arising out of their respective law enforcement agencies.]