ARTICLE 1. The Office.

Sec.

§ 162-1. Election and term of office.

In each county a sheriff shall be elected by the qualified voters thereof, as is prescribed for members of the General Assembly, and shall hold his office for four years.

History

(Const., art. 4, s. 24; Rev., s. 2808; C.S., s. 3925.)

Cross References. - As to other oaths required of public officers, see G.S. 11-7 and N.C. Const., Art. VI, § 7.

As to form of oath required of sheriff and other officers before taking office, see G.S. 11-11.

As to penalty for failure to take oath, see G.S. 128-5.

Editor's Note. - An amendment to this section in Session Laws 1981, c. 504, s. 10, was made effective upon certification of approval of the constitutional amendments proposed by ss. 1 to 3 of the act. The constitutional amendments were submitted to the people at an election held June 29, 1982, and were defeated. Therefore, the 1981 amendment to this section never went into effect.

Legal Periodicals. - For a survey of 1996 developments in constitutional law, see 75 N.C.L. Rev. 2281 (1997).

CASE NOTES

A sheriff is no longer considered to have a vested right in his office, nor is his tenure considered to be based upon a contract with the State. Mial v. Ellington, 134 N.C. 131, 46 S.E. 961 (1903), overruling Hoke v. Henderson, 15 N.C. 1 (1833) and all cases following it in holding a public office to be private property.

Effect of Constitutional Amendment on Term of Office. - The term of office of sheriffs-elect begins on the first Monday in December next ensuing their election, and the constitutional amendment changing the term of office of sheriffs from two to four years, approved by the voters in the election of 1938, being in effect on the first Monday in December, the date of the beginning of the term of the sheriffs elected in that election, their term of office was four years in accordance with the amendment then in effect. Freeman v. Cook, 217 N.C. 63, 6 S.E.2d 894 (1940).

Proceedings in Nature of Quo Warranto. - An action by the Attorney General in the name of the people of the State, and of the person who claims the office of sheriff, is the proper mode of proceeding against the person who is alleged to be usurping it, to try the question as to which of the parties is entitled to the office. Loftin v. Sowers, 65 N.C. 251 (1871).

Sheriffs Not Entitled to Eleventh Amendment Immunity. - The Eleventh Amendment of the U.S. Constitution does not bar a suit against a sheriff in his official capacity, because state law treats sheriffs as local officials. Harter v. Vernon, 101 F.3d 334 (4th Cir. 1996), cert. denied, 521 U.S. 1120, 117 S. Ct. 2511, 138 L. Ed. 2d 1014 (1997).

Cited in Fate v. Dixon, 649 F. Supp. 551 (E.D.N.C. 1986); Braswell v. Ellis, 950 F. Supp. 145 (E.D.N.C. 1995); Carter v. Good, 951 F. Supp. 1235 (W.D.N.C. 1996); Efird v. Riley, 342 F. Supp. 2d 413 (M.D.N.C. 2004); Boyd v. Robeson County, 169 N.C. App. 460, 621 S.E.2d 1 (2005), cert. denied, 359 N.C. 629, 615 S.E.2d 866 (2005); Young v. Bailey, 368 N.C. 665, 781 S.E.2d 277 (2016).


§ 162-2. Disqualifications for the office.

  1. No person shall be eligible for the office of sheriff if any of the following apply:
    1. The person is not of the age of 21 years.
    2. The person has been convicted of a felony in this State, the United States, or any other state, whether or not that person has been restored to the rights of citizenship or granted an expunction. This subdivision shall not include an unconditional pardon of innocence.
    3. The person is not a qualified voter in the county in which the candidate is chosen.
  2. Notwithstanding Article 5 of Chapter 15A of the General Statutes, any person filing a notice of candidacy, or any appointee selected to fill a vacancy, to the office of sheriff shall provide a statement of disclosure prepared by the North Carolina Sheriffs' Education and Training Standards Commission in accordance with Article 3 of Chapter 17E of the General Statutes.
  3. No person shall engage in the practice of law or serve as a member of the General Assembly while serving as sheriff.

History

(1777, c. 118, ss. 2, 4, P.R.; 1806, c. 699, s. 2, P.R.; 1829, c. 5, s. 6; 1830, c. 25, ss. 2, 3; R.C., c. 105, ss. 5, 6, 7; Code, ss. 2067, 2068, 2069; Rev., s. 2809; C.S., s. 3926; 1971, c. 1231, s. 1; 1983, c. 670, s. 1; 2021-107, s. 1.)

Editor's Note. - Session Laws 2021-107, s. 10, made the rewriting of this section by Session Laws 2021-107, s. 1, effective October 1, 2021, and applicable to elections and appointments to the office of sheriff on or after that date.

Effect of Amendments. - Session Laws 2021-107, s. 1, rewrote the section. For effective date and applicability, see editor's note.

CASE NOTES

Full Settlement of Public Funds Required of Incumbent. - A person, although elected by the qualified voters of a county to the office of sheriff, would not be eligible for said office, if he, having been theretofore sheriff of said county, had failed to settle with, and fully pay up to, every officer the taxes which were due from him. Lenoir County v. Taylor, 190 N.C. 336, 130 S.E. 25 (1925).

Incumbent to Produce Receipts. - A former sheriff must exhibit to the board of commissioners the receipts in full of the proper officers, for all public funds which he received, or ought to have received during his preceding official term, before he will be permitted to reenter upon a new term. Colvard v. Board of Comm'rs, 95 N.C. 515 (1886); Lenoir County v. Taylor, 190 N.C. 336, 130 S.E. 25 (1925).

The fact that incumbent was able, ready and willing at the time of tendering his bond, to make settlement and payment of any liability on account of funds so received, does not dispense with the requirement that he shall produce receipts in full. Colvard v. Board of Comm'rs, 95 N.C. 515 (1886).

Requirement to Produce Receipts Constitutional. - The requirement that a sheriff-elect who has theretofore been sheriff produce his tax receipts is not unconstitutional. State ex rel. Lee v. Dunn, 73 N.C. 595 (1875).

Cited in Pender County v. King, 197 N.C. 50, 147 S.E. 695 (1929); Harter v. Vernon, 953 F. Supp. 685 (M.D.N.C. 1996), aff'd, 101 F.3d 334 (4th Cir. 1996), cert. denied, 521 U.S. 1120, 117 S. Ct. 2511, 138 L. Ed. 2d 1014 (1997).


§ 162-3. Sheriff may resign.

Every sheriff may vacate his office by resigning the same to the board of county commissioners of his county; and thereupon the board may proceed to elect another sheriff.

History

(1777, c. 118, s. 1, P.R.; 1808, c. 752, P.R.; R.C., c. 105, s. 15; Code, s. 2077; Rev., s. 2810; C.S., s. 3927.)

Local Modification. - Buncombe, Cabarrus and Iredell: 1981, c. 199.

CASE NOTES

Cited in Durham Herald Co. v. County of Durham, 334 N.C. 677, 435 S.E.2d 317 (1993); Boyd v. Robeson County, 169 N.C. App. 460, 621 S.E.2d 1 (2005), cert. denied, 359 N.C. 629, 615 S.E.2d 866 (2005); McLaughlin v. Bailey, 240 N.C. App. 159, 771 S.E.2d 570 (2015), appeal, dismissed, 368 N.C. 284, 775 S.E.2d 835, 2015 N.C. LEXIS 713 (2015), aff'd, 368 N.C. 618, 781 S.E.2d 23, 2016 N.C. LEXIS 28 (2016).


§ 162-4: Repealed by Session Laws 1979, c. 518.

§ 162-5. Vacancy filled; duties performed by coroner or chief deputy.

  1. If any vacancy occurs in the office of sheriff, the coroner of the county shall execute all process directed to the sheriff until the first meeting of the board of county commissioners next succeeding such vacancy, when the board of county commissioners shall appoint a sheriff to supply the vacancy for the residue of the term, who shall possess the same qualifications, enter into the same bond, and be subject to removal, as the sheriff regularly elected.
  2. If the board of county commissioners should fail to fill such vacancy, the coroner shall continue to discharge the duties of sheriff until it shall be filled. In those counties where the office of coroner has been abolished, the chief deputy sheriff, or if there is no chief deputy, then the senior deputy in years of service, shall perform all the duties of the sheriff until the board of county commissioners appoint some person to fill the unexpired term. In all counties the regular deputy sheriffs shall, during the interim of the vacancy, continue to perform their duties with full authority.
  3. The board of county commissioners shall not make any appointment under this section without first being presented with a valid disclosure statement of no felony convictions or expungements, issued within 90 days prior to the appointment, prepared by the North Carolina Sheriffs' Education and Training Standards Commission pursuant to Article 3 of Chapter 17E of the General Statutes with respect to the individual being appointed.

History

(1829, c. 5, s. 8; R.S., c. 109, s. 11; R.C., c. 105, s. 11; Code, s. 2071; Rev., s. 2811; C.S., s. 3929; 1973, c. 74; 1983, c. 670, s. 2; 2021-107, s. 8(a).)

Local Modification. - Buncombe, Cabarrus and Iredell: 1981, c. 199.

Editor's Note. - Session Laws 2011-175, s. 4(b), provides: "Vacancies in the office of Sheriff of Stanly County shall be filled in accordance with G.S. 162-5."

Session Laws 2021-107, s. 10, made the amendments to this section, by Session Laws 2021-107, s. 8(a), effective October 1, 2021, and applicable to elections and appointments to the office of sheriff on or after that date.

Effect of Amendments. - Session Laws 2021-107, s. 8(a), added the subsection (a) and (b) designations to the previously existing provisions; in subsections (a) and (b), inserted "board of" and "of county commissioners" so that "board of county commissioners" appears throughout; substituted "appoint" for "elect” near the middle of subsection (a); and added subsection (c). For effective date and applicability, see editor's note.

Legal Periodicals. - For a survey of 1996 developments in constitutional law, see 75 N.C.L. Rev. 2281 (1997).

CASE NOTES

Appointment by Commissioners for Unexpired Term Only. - In case of a vacancy in the sheriff's office, it is within the power of the board of county commissioners to appoint for the unexpired term only. People ex rel. Worley v. Smith, 81 N.C. 304 (1879).

Appointment by Commissioners Where Sheriff-Elect Fails to Qualify. - Where a sheriff-elect failed to qualify as sheriff for the term to which he had been elected, it became the duty of the board of commissioners forthwith to elect some suitable person in the county as sheriff for the unexpired term. Lenoir County v. Taylor, 190 N.C. 336, 130 S.E. 25 (1925).

As Where Incumbent Is in Arrears on Reelection. - It is the duty of the county commissioners to declare the sheriff's office vacant, and appoint someone for the unexpired term, whenever the incumbent thereof is found to be, on reelection, in arrears in his settlement of the public taxes. People ex rel. McNeill v. Green, 75 N.C. 329 (1876).

Commissioners' Appointee Held Entitled to Office. - Where S was appointed sheriff in 1875, to fill a vacancy, and held the office until May, 1877, and in November, 1876, an election was held, and upon the result of certain legal proceedings in May, 1877, M was declared to be elected sheriff, but M failed to give bond, and the county commissioners declared a vacancy and appointed B to fill the same, it was held that S had no right to hold over until the next popular election, but that B was entitled to the office, having been elected by the commissioners. State ex rel. Sneed v. Bullock, 80 N.C. 132 (1879).

Upon the insanity of the sheriff, his right to exercise the office ceases and the agency of his deputies is terminated, and his committal to a hospital for the insane and the appointment of a guardian for him are certainly at least prima facie evidence of such insanity. Somers v. Board of Comm'rs, 123 N.C. 582, 31 S.E. 873 (1898).

Collection of Taxes When Sheriff Becomes Insane. - Upon the prima facie ascertainment of the insanity of the sheriff, or by inquisition of lunacy, the commissioners may declare the office vacant, under this section, but their failure to do so merely authorizes the coroner to perform the duties of sheriff proper, until such declaration, and does not cast upon him the right to collect the taxes, which goes to the sheriff's bondsmen for the current list, and after that devolves upon a tax collector chosen by the county commissioners. Somers v. Board of Comm'rs, 123 N.C. 582, 31 S.E. 873 (1898). See also, Greer v. City of Asheville, 114 N.C. 678, 19 S.E. 635 (1894).

Upon the declaration of insanity, the sureties of the sheriff have no more rights than would have gone to them upon his death to collect the tax list then in his hands, and the commissioners are vested with the power of electing a tax collector for the ensuing year, unless and until the sheriff should be restored to reason. Somers v. Board of Comm'rs, 123 N.C. 582, 31 S.E. 873 (1898). See also, Perry v. Campbell, 63 N.C. 257 (1869); McNeill v. Sommers, 96 N.C. 467, 2 S.E. 161 (1887).

Cited in Boyd v. Robeson County, 169 N.C. App. 460, 621 S.E.2d 1 (2005), cert. denied, 359 N.C. 629, 615 S.E.2d 866 (2005); Locklear v. Cummings, 253 N.C. App. 457, 801 S.E.2d 346 (2017).


§ 162-5.1. Vacancy filled in certain counties; duties performed by coroner or chief deputy.

  1. If any vacancy occurs in the office of sheriff, the coroner of the county shall execute all process directed to the sheriff until the board of county commissioners shall appoint a sheriff to supply the vacancy for the residue of the term, who shall possess the same qualifications, enter into the same bond, and be subject to removal, as the sheriff regularly elected.
  2. If the sheriff were elected as a nominee of a political party, the board of county commissioners shall consult the county executive committee of that political party before filling the vacancy, and shall appoint the person recommended by the county executive committee of that party, if the party makes a recommendation within 30 days of the occurrence of the vacancy.
  3. If the board should fail to fill such vacancy, the coroner shall continue to discharge the duties of sheriff until it shall be filled. In those counties where the office of coroner has been abolished, the chief deputy sheriff, or if there is no chief deputy, then the senior deputy in years of service, shall perform all the duties of the sheriff until the board of county commissioners appoint some person to fill the unexpired term. In all counties the regular deputy sheriffs shall, during the interim of the vacancy, continue to perform their duties with full authority.
  4. The board of county commissioners shall not make any appointment under this section without first being presented with a valid disclosure statement of no felony convictions or expungements, issued within 90 days prior to the appointment, prepared by the North Carolina Sheriffs' Education and Training Standards Commission pursuant to Article 3 of Chapter 17E of the General Statutes with respect to the individual being appointed.
  5. This section shall apply only in the following counties: Alamance, Alleghany, Avery, Beaufort, Brunswick, Buncombe, Cabarrus, Caldwell, Carteret, Cherokee, Clay, Davidson, Davie, Edgecombe, Forsyth, Gaston, Graham, Guilford, Haywood, Henderson, Hyde, Jackson, Lee, Lincoln, Madison, McDowell, Mecklenburg, Moore, New Hanover, Onslow, Pender, Polk, Randolph, Richmond, Rockingham, Rutherford, Sampson, Stokes, Surry, Swain, Transylvania, Wake, Washington, Wayne, and Yancey.

History

(1981, c. 763, ss. 10, 14; c. 830; 1983, c. 670, s. 2; 1987, c. 196, s. 3; 1989, c. 83; c. 497, s. 1; 1991, c. 15, s. 1; c. 558, s. 2; 2001-257, s. 2; 2003-39, s. 1; 2003-90, s. 1; 2009-32, s. 2; 2011-175, s. 4(a); 2012-25, s. 1; 2015-251, s. 1; 2019-5, s. 1; 2019-206, s. 1; 2021-107, s. 8(b); 2021-141, s. 1.)

Local Modification. - Wake: 2015-4, s. 1(a).

Editor's Note. - Session Laws 1981, c. 763, s. 10, amended G.S. 162-5, but the amendment was codified as this section.

Session Laws 2011-175, s. 4(b), provides: "Vacancies in the office of Sheriff of Stanly County shall be filled in accordance with G.S. 162-5."

Session Laws 2019-206, s. 2, made the amendment by Session Laws 2019-206, s. 1, effective August 28, 2019, and applicable to vacancies occurring on or after that date.

Session Laws 2021-107, s. 10, made the amendments to this section, by Session Laws 2021-107, s. 8(b), effective October 1, 2021, and applicable to elections and appointments to the office of sheriff on or after that date.

Session Laws 2021-141, s. 2, made the addition of Swain County to the list of counties to which this section applies, as added by Session Laws 2021-141, s. 1, effective September 9, 2021, and applicable to vacancies occurring on or after that date.

Effect of Amendments. - Session Laws 2009-32, s. 2, effective May 21, 2009, inserted "Lee" in the third paragraph.

Session Laws 2011-175, s. 4(a), effective June 18, 2011, deleted "Stanly" following "Sampson" near the end of the last paragraph.

Session Laws 2012-25, s. 1, effective June 12, 2012, inserted "Wayne" in the third paragraph.

Session Laws 2015-251, s. 1, effective September 28, 2015, inserted "Washington" near the end of the last paragraph.

Session Laws 2019-5, s. 1, effective March 19, 2019, in the third paragraph, deleted "Alexander" following "Alamance" and "Burke" following "Buncombe".

Session Laws 2019-206, s. 1, deleted "Cleveland" following "Clay" in the third paragraph of this section. For effective date and applicability, see Editor's note.

Session Laws 2021-107, s. 8(b), rewrote the section. For effective date and applicability, see editor's note.

Session Laws 2021-141, s. 1, in subsection (e), inserted "Swain" and made a stylistic change. For effective date and applicability, see editor's note.

CASE NOTES

Termination of Deputy Sheriff. - Deputy sheriff's free speech rights were not violated because mutual confidence and loyalty between a sheriff and a deputy were crucial in accomplishing the sheriff's policies and duties; thus, the deputy could be lawfully terminated for political reasons under the exception to prohibited political terminations; by standing in the elected sheriff's shoes, a deputy sheriff fills a role in which loyalty to the elected sheriff is necessary to ensure that the sheriff's policies are carried out. Young v. Bailey, 368 N.C. 665, 781 S.E.2d 277 (2016).

Cited in Jenkins v. Medford, 119 F.3d 1156 (4th Cir. 1997), cert. denied, 522 U.S. 1090, 118 S. Ct. 881, 139 L. Ed. 2d 869 (1998); Boyd v. Robeson County, 169 N.C. App. 460, 621 S.E.2d 1 (2005), cert. denied, 359 N.C. 629, 615 S.E.2d 866 (2005).

Opinions of Attorney General

For a discussion of the proper authority and procedures for appointing an interim county tax collector, see opinion of Attorney General to The Honorable Charles Beall, North Carolina House of Representatives, 1998 N.C.A.G. 35 (8/5/98).

§§ 162-6, 162-7: Repealed by Session Laws 1973, c. 108, s. 99.

ARTICLE 2. Sheriff's Bond.

Sec.

§ 162-8. Bond required.

The sheriff shall furnish a bond payable to the State of North Carolina for the due execution and return of process, the payment of fees and moneys collected, and the faithful execution of his office as sheriff, which shall be conditioned as follows:

The condition of the above obligation is such that, whereas the above bounden ________ is elected and appointed sheriff of ________ County; if therefore, he shall well and truly execute and due return make of all process and precepts to him directed, and pay and satisfy all fees and sums of money by him received or levied by virtue of any process into the proper office into which the same, by the tenor thereof, ought to be paid, or to the person to whom the same shall be due, his executors, administrators, attorneys, or agents; and in all other things well and truly and faithfully execute the said office of sheriff during his continuance therein, then above obligation to be void; otherwise to remain in full force and effect.

The amount of the bond shall be determined by the board of county commissioners, but shall not exceed twenty-five thousand dollars ($25,000).

History

(1777, c. 118, s. 1, P.R.; 1823, c. 1223, P.R.; R.C., c. 105, s. 13; 1879, c. 109; Code, s. 2073; 1895, c. 270, ss. 1, 2; 1899, c. 54, s. 52; c. 207, s. 2; 1903, c. 12; Rev., s. 298; C.S., s. 3930; 1943, c. 543; 1983, c. 670, s. 4.)

Cross References. - As to statute of limitation on official bond, see G.S. 1-50.

As to official bonds generally, see G.S. 58-72-1 et seq., 162-9 and 162-10.

As to liability and right of action on official bond, see G.S. 58-76-5.

Legal Periodicals. - For note, "Extent of Liability on Sheriff's Official Bond," see 12 N.C.L. Rev. 394 (1934).

For a survey of 1996 developments in constitutional law, see 75 N.C.L. Rev. 2281 (1997).

CASE NOTES

I. IN GENERAL.

Editor's Note. - Most of the cases below were decided under this section as it read prior to amendment by Session Laws 1983, c. 670, s. 4, under which the sheriff was to execute two bonds.

No Right of Commissioners to Refuse Bonds. - When a sheriff-elect has fulfilled all the statutory requirements as to the execution of bonds, the county commissioners may not refuse said bonds and deprive the rightful holder of his office. Sikes v. Commissioners of Bladen County, 72 N.C. 34 (1875).

Where sheriff failed to comply with the requirements of this section, he was not entitled to have the county commissioners induct him into office, notwithstanding the fact that at the beginning of his term there was a tax collector in that county. Colvard v. Board of Comm'rs, 95 N.C. 515 (1886).

Ceremony and Registration Not Essential. - The ceremony of acknowledgment in open court, and registration, are not essential to the validity of a sheriff's bond. State ex rel. McLean v. Buchanan, 53 N.C. 444 (1862).

Bond Held Valid as Voluntary Bond. - Where a bond made payable to the State was given by a sheriff for the discharge of public duties, but was not taken in the manner or by the persons designated by law to take it, it would nevertheless be good as a voluntary bond; being for the benefit of the State, the State would be presumed to have accepted it when it was delivered to third person for its benefit. State ex rel. Davis v. McAlpin, 26 N.C. 140 (1843).

If a sheriff voluntarily gives bond, with sureties, in an amount larger than prescribed by law, they will be liable for a breach thereof. State Bank of North Carolina v. Twitty, 9 N.C. 5 (1822); Governor ex rel. Henderson v. Matlock, 9 N.C. 366 (1823).

Form of Bond Held Sufficient. - A sheriff's bond to "his Excellency M.S. Captain General and Commander in Chief, in and over the State of North Carolina in the sum of $10,000 to be paid to his Excellency, the Governor, his successor and assigns:" was a bond payable to the Governor in his official capacity, and was an official bond within the act of 1823, which was in force when it was taken. Governor ex rel. Huggins v. Montford, 23 N.C. 155 (1840).

Demand is not necessary before suit by county treasurer on sheriff's bond, as the sheriff is required by law to settle on or before a day certain. McGuire v. Williams, 123 N.C. 349, 31 S.E. 627 (1898).

As to proper relators for settlement of school taxes see State ex rel. Tillery v. Candler, 118 N.C. 888, 24 S.E. 709 (1896); State ex rel. Bd. of Comm'rs v. Sutton, 120 N.C. 298, 26 S.E. 920 (1897).

Previous Settlements Prima Facie Correct. - Previous settlements with the sheriff, when approved by the board of commissioners, are prima facie correct, and the burden of proving to the contrary rests upon them. Commissioners of Iredell County v. White, 123 N.C. 534, 31 S.E. 670 (1898).

The return of a sheriff that a fieri facias is satisfied is conclusive upon his sureties in an action on his official bond. Governor ex rel. State Bank v. Twitty, 12 N.C. 153 (1827).

Failure to Have Insolvent's Allowance Made. - Where a sheriff failed to settle for taxes within the time appointed by law and did not have allowance made him by the commissioners for insolvents at the time and in the manner prescribed by law, he could not have such allowances made by the court in an action brought against him on his official bond for the balance due by him on the tax list. Board of Comm'rs v. Wall, 117 N.C. 377, 23 S.E. 358 (1895).

Certified Copy as Evidence. - The office of the clerk of the superior court of the county for which one is sheriff is the proper place of deposit for the bond of such sheriff, and a copy of such bond, certified by such clerk, is competent evidence of its contents, even if the certificate does not state that it has been recorded. State ex rel. Erwin v. Lowrance, 64 N.C. 483 (1870).

Generally a plea in bar must be disposed of before a reference for an account can be made. Commissioners of Iredell County v. White, 123 N.C. 534, 31 S.E. 670 (1898).

Cited in Governor ex rel. Arundell v. Jones, 9 N.C. 359 (1823); State ex rel. Cain v. Corbett, 235 N.C. 33, 69 S.E.2d 20 (1952); Hull v. Oldham, 104 N.C. App. 29, 407 S.E.2d 611 (1991); Summey v. Barker, 142 N.C. App. 688, 544 S.E.2d 262 (2001); Efird v. Riley, 342 F. Supp. 2d 413 (M.D.N.C. 2004); Townsend v. Shook, 210 N.C. App. 462, 708 S.E.2d 187 (2011).

II. LIABILITY ON BONDS.

Liability for Wrongs Under Color of Office. - Section 109-34 (now G.S. 58-76-5) extends liability on sheriff's general official bond and imposes liability for wrongs committed under color of office. Price v. Honeycutt, 216 N.C. 270, 4 S.E.2d 611 (1939). See also annotations to § 58-76-5.

For cases formerly holding sureties on sheriff's official bond not liable for wrongs committed under color of office, see Jones v. Montford, 20 N.C. 69 (1838); State ex rel. Martin v. Long, 30 N.C. 415 (1848); State ex rel. Butts v. Brown, 33 N.C. 141 (1850); State ex rel. Bd. of Comm'rs v. Sutton, 120 N.C. 298, 26 S.E. 920 (1897); North Carolina ex rel. Wimmer v. Leonard, 68 F.2d 228 (4th Cir. 1934).

Only Duties Specifically Described Are Covered by Bond. - A sheriff and his sureties are liable on his official bond only for a breach of some duty specifically described therein. Eaton v. Kelly, 72 N.C. 110 (1875). But see, Price v. Honeycutt, 216 N.C. 270, 4 S.E.2d 611 (1939).

For cases construing general words "faithfully execute," etc., as not extending beyond duties specifically described in bond, see Crumpler v. Governor, 12 N.C. 52 (1826); Governor ex rel. County Trustee v. Matlock, 12 N.C. 214 (1827); Davis v. Moore, 215 N.C. 449, 2 S.E.2d 366 (1939), overruled, 217 N.C. 279, 7 S.E.2d 563 (1940).

Liability for Use of Excessive Force in Making Arrest. - Where complaint in an action against a sheriff in his official capacity and against his surety alleged that plaintiff was permanently injured by sheriff's use of excessive force in arresting him and that the arrest was wrongful and unlawful, defendants' demurrer to the complaint should have been overruled. Price v. Honeycutt, 216 N.C. 270, 4 S.E.2d 611 (1939).

Bond Held Broad Enough to Cover Money Collected. - A bond to serve process, collect and pay out moneys, etc., is broad enough to cover money collected for a town which it was the sheriff's duty to collect. State ex rel. Boger v. Bradshaw, 32 N.C. 229 (1849); State ex rel. Prince v. McNeill, 77 N.C. 398 (1877).

School Fund Included in County Bond. - It is immaterial whether the school fund is, strictly speaking, State taxes or county taxes, or both, as such funds are included in the "county" bond and the sheriff must account for them in settling his liability on that bond. State ex rel. Tillery v. Candler, 118 N.C. 888, 24 S.E. 709 (1896); State ex rel. Bd. of Comm'rs v. Sutton, 120 N.C. 298, 26 S.E. 920 (1897).

Settlement of One Tax Fund at Expense of Another. - Where a sheriff's settlement of one tax fund is made partially by an amount deducted from another tax fund, the settlement exonerates him and his surety from liability on the bond for the taxes settled; however, he and his sureties are liable in an action on the bond for the taxes misappropriated for such defalcation. McGuire v. Williams, 123 N.C. 349, 31 S.E. 627 (1898).

No Recovery of County Taxes upon Process Bond. - The county tax could not be recovered of the sheriff upon the official bond required by the Act of 1777, which was the process bond required by this section. Governor ex rel. Campbell v. Barr, 12 N.C. 65 (1826).

The sureties on the "process" bond are not liable for default as to county taxes. Crumpler v. Governor, 12 N.C. 52 (1826); State ex rel. Bd. of Comm'rs v. Sutton, 120 N.C. 298, 26 S.E. 920 (1897).

Bond Held Not to Cover Injury Caused by Prisoner While Unlawfully at Large as Trusty. - Where suit was brought on bond providing for liability if the sheriff failed to properly execute and return all process or properly pay all moneys received by him by virtue of any process, "and in all things well and truly and faithfully execute the said office of sheriff," the general provisions of the bond as to the sheriff's faithful performance of the duties of the office related to the specific obligations therein set out as to service and return of process, and neither the sheriff nor the sureties on his bond was liable thereon in a civil action for damages for a negligent injury inflicted by a prisoner lawfully entrusted to the custody of the sheriff while such prisoner was unlawfully permitted by the sheriff to be at large as a trusty. Sutton v. Williams, 199 N.C. 546, 155 S.E. 160 (1930).

Recovery in Excess of Bond. - In a wrongful death action arising from an incident at a county jail, although the sheriff claimed that sovereign immunity entitled him to summary judgment as a matter of law to the extent plaintiffs - the decedent's mother and the administrator of his estate, sought to recover damages in excess of the sheriff's official bond under G.S. 162-8 and G.S. 58-76-5, plaintiffs' claims were not barred by exclusions in the county's liability insurance under G.S. 153A-435; although the policy excluded coverage for claims arising from criminal behavior and plaintiffs claimed the sheriff was negligent by violating G.S. 153A-224 - a Class 1 misdemeanor, other grounds were alleged for the sheriff's negligence. Myers v. Bryant, 188 N.C. App. 585, 655 S.E.2d 882, review denied, 362 N.C. 360, 664 S.E.2d 309 (2008).

Former Sheriff's Bond Held Not Breached by Act of Duty Under Successor. - Where deputy of a sheriff received the note of a married woman for collection within a magistrate's jurisdiction and failed to collect the same during the sheriff's official term, but afterwards, when acting as the deputy of his successor, collected it and failed to pay over the money, there was no breach of the former sheriff's official bond. State ex rel. Graham v. Buchanan, 60 N.C. 93 (1863).

Commencement of Sureties' Liability. - Where under G.S. 162-10 the board of county commissioners declared the office of sheriff vacant for his failure to give the bond required by this section and after appointing another, who likewise failed to give bond, and again appointed the former sheriff, who gave the necessary bonds and then qualified, his term was by virtue of his appointment by the board of county commissioners, and the liability of the sureties on his official bonds commenced from the time of his appointment. Pender County v. King, 197 N.C. 50, 147 S.E. 695 (1929).

Coverage of Bonds Limited to Years Stated. - Where an action was brought on the bonds of a sheriff given in 1872 and 1873 and conditioned only for those years, such bonds could not be enlarged to embrace a default occurring in the year 1874 on the ground that the law required a bond for the principal's whole term of office. State ex rel. Prince v. McNeill, 77 N.C. 398 (1877).

What Sureties Liable for Taxes Received Under Lists Furnished Preceding Year. - A sheriff's sureties for one year are not liable for any taxes received by him under the lists furnished in the preceding year; but the sureties of that year are liable. Fitts v. Hawkins, 9 N.C. 394 (1823).

Where sheriff, elected in 1872, continued to exercise duties of office after failure to renew his bond and produce his receipts, and was reelected in 1874, and failed to collect and pay over the taxes for that year, it was held that he was liable on his bond of 1872. State ex rel. Vann. v. Pipkin, 77 N.C. 408 (1877). See also State ex rel. Moore County v. McIntosh, 31 N.C. 307 (1848); State ex rel. Bd. of Comm'rs v. Clarke, 73 N.C. 255 (1875); State ex rel. Coffield v. McNeill, 74 N.C. 535 (1876).

Liability on Earlier Bond Not Discharged by Giving of Subsequent Bond. - The various bonds separately required to be given by the sheriff under this section impose a distinct liability on the sureties on each bond separately for the terms of office for which given; hence, where a bond is given by the same surety for the same sheriff for more than one successive term, the giving of the bond for the succeeding term does not discharge the bond previously given, nor release the surety from liability thereon, and a separate cause of action will lie against the surety on the bond for each term. Pender County v. King, 197 N.C. 50, 147 S.E. 695 (1929).

Coverage of Bond When New Duty Added by Statute. - Where a statute requires a bond from an officer for the faithful discharge of his duty, and a new duty is attached to the office by statute, such bond, given subsequently to the latter statute, embraces such new duty, and is a security for its performance, unless when the new duty is attached a bond is required to be given specifically for its performance. State ex rel. Boger v. Bradshaw, 32 N.C. 229 (1849).

Surety's Liability Not Affected by Change in Sheriff's Compensation. - The liability of a surety on a sheriff's bond given under this section is not affected by the fact that the sheriff, pending the life of the bond, has been put upon a salary instead of a fee basis or that the amount of his salary has been changed under the authority of a statute. Pender County v. King, 197 N.C. 50, 147 S.E. 695 (1929).

Waiver of Immunity. - In an action in which soldiers, who were shot by a sheriff's deputy, sought to hold the sheriff in his official capacity liable on the basis of respondeat superior for the alleged assault and battery committed by the deputy, the sheriff's governmental immunity was waived pursuant to G.S. 58-76-5 by the purchase of a statutorily required bond under G.S. 162-8 because the sheriff's surety was joined as a party. Massasoit v. Carter, 439 F. Supp. 2d 463 (M.D.N.C. 2006), aff'd, 253 Fed. Appx. 295 (4th Cir. N.C. 2007).

Trial court did not err in denying a sheriff and a surety summary judgment in a former employee's action asserting retaliatory termination because the sheriff waived governmental immunity by purchasing an official bond; the employee's claim, if supported by adequate proof, came within the scope of the sheriff's official duties because she alleged that the sheriff wrongfully terminated her employment in retaliation for her decision to file a workers' compensation claim. White v. Cochran, 229 N.C. App. 183, 748 S.E.2d 334 (2013).

Given that a sheriff purchased a bond from a surety, and given that the surety had been joined as a party, the sheriff waived governmental immunity to the extent of the amount of the bond. White v. Cochran, 229 N.C. App. 183, 748 S.E.2d 334 (2013).


§ 162-9. County commissioners to take and approve bonds.

The board of county commissioners in every county shall take and approve the official bond of the sheriffs, which they shall cause to be registered and the original deposited with the clerk of superior court for safekeeping. The bond shall be taken on the first Monday of December next after the election.

History

(1806, c. 699, s. 2, P.R.; 1830, c. 5, s. 5; R.C., c. 105, s. 6; 1868, c. 20, s. 32; 1876-7, c. 276, s. 5; Code, ss. 2066, 2068; Rev., s. 2812; C.S., s. 3931; 1983, c. 670, s. 5.)

CASE NOTES

Purpose. - The evident purpose of this section is only to protect and safeguard the public revenue and to ensure its honest collection and application. Hudson v. McArthur, 152 N.C. 445, 67 S.E. 995 (1910).

Execution and Approval of Bond(s) Essential. - To entitle a sheriff to be inducted into office, it is essentially necessary that the bond(s) must be executed by him and approved by the county commissioners. Dixon v. Commissioners of Beaufort, 80 N.C. 118 (1879).

Commissioners Held Not Liable to Sureties for Failure to Demand Receipts. - County commissioners were not liable to the sureties on the bond of a defaulting sheriff and tax collector whose defalcations they were required to pay for failure to demand sheriff's receipts in full for taxes collected the previous year before permitting him to receive the tax duplicate for the current year. Hudson v. McArthur, 152 N.C. 445, 67 S.E. 995 (1910).

Cited in Pender County v. King, 197 N.C. 50, 147 S.E. 695 (1929); Boyd v. Robeson County, 169 N.C. App. 460, 621 S.E.2d 1 (2005), cert. denied, 359 N.C. 629, 615 S.E.2d 866 (2005).


§ 162-10. Duty of commissioners when bond insufficient.

Whenever the board of county commissioners finds that the sheriff has been unable to provide the bond prescribed by the board, the board shall give written notice to the sheriff to appear before the board within 10 days and provide a sufficient bond. If the sheriff fails to appear or provide a sufficient bond, the sheriff shall forfeit his office, and the commissioners shall elect a suitable person in the county as sheriff for the unexpired term, pursuant to G.S. 162-5 or G.S. 162-5.1, as appropriate.

History

(1879, c. 109, s. 2; Code, s. 2074; Rev., s. 2813; C.S., s. 3932; 1983, c. 670, s. 6.)

Cross References. - As to vacancy filled, see G.S. 162-5.

As to bonds required of sheriff, see G.S. 162-8.

CASE NOTES

Power to Fill Vacancy on Sheriff's Failure to Give Bond. - Upon the failure of a sheriff-elect to give bond(s) required by law, the board has power to elect some suitable person in the county as sheriff for the unexpired term. Lenoir County v. Taylor, 190 N.C. 336, 130 S.E. 25 (1925).

Right to Examine Sheriff and Vacate Office. - Under Art. VII, § 2, Const. 1868, the county commissioners had the right to summons the sheriff to justify or renew his official bond, whenever in fact or in their opinion the sureties had become, or were liable to become insolvent, and it was not only the right but the duty of the commissioners to declare the office of sheriff vacant and appoint another person for the unexpired term whenever the incumbent took no notice of a summons by the commissioners to appear before them and justify or renew his bond. People ex rel. McNeill v. Green, 75 N.C. 329 (1876).

Cited in Pender County v. King, 197 N.C. 50, 147 S.E. 695 (1929).


§ 162-11: Repealed by Session Laws 1983, c. 670, s. 7.

§ 162-12. Liability of sureties.

The sureties to a sheriff's bond shall be liable for all fines and amercements imposed on him, in the same manner as they are liable for other defaults in his official duty.

History

(1829, c. 33; R.C., c. 105, s. 14; Code, s. 2076; Rev., s. 2815; C.S., s. 3934.)

Cross References. - As to execution of sheriff's bonds, see G.S. 162-8 and notes thereto.

CASE NOTES

Liability for Amercements. - The sureties to a sheriff's bond, with a condition in the ordinary form, are liable for an amercement of the sheriff for a default committed during his official year, even though the final judgment for the amercement may not have been rendered until after the expiration of the year. Governor ex rel. Huggins v. Montford, 23 N.C. 155 (1840).

Records of Proceedings for Amercement as Evidence. - The records of the proceedings against a sheriff for an amercement imposed upon him are not evidence against his sureties to prove his default, but they are admissible against them to prove the fact of the existence of the amercement itself. Governor ex rel. Huggins v. Montford, 23 N.C. 155 (1840).

Judgment of an amercement against a sheriff is not conclusive against sureties on his bond. They may show that the judgment was either fraudulently or improperly obtained against their principal. State ex rel. Parker v. Woodside, 29 N.C. 296 (1847).

Return Conclusive. - A sheriff cannot be heard to deny or contradict his return; as to him it is conclusive, and he and the sureties upon his bond are liable to the plaintiff in the execution for the sums so endorsed. Walters v. Moore, 90 N.C. 41 (1884).


ARTICLE 3. Duties of Sheriff.

Sec.

§ 162-13. To receipt for process.

Every sheriff or coroner shall, when requested, give his receipt for all original and mesne process placed in his hands for execution, to the party suing out the same, his agent or attorney; and such receipt shall be admissible as evidence of the facts therein stated, against such officer and his sureties, in any suit between the party taking the receipt and such officer and his sureties.

History

(1848, c. 97; R.C., c. 105, s. 18; Code, s. 2081; Rev., s. 2816; C.S., s. 3935; 1995, c. 379, s. 14(d).)

Cross References. - As to duty when warrant of attachment is directed to sheriff, see G.S. 1-440.12.

As to sheriff's duties and liabilities in claim and delivery, see G.S. 1-476 and G.S. 1-477.

As to duty to adjourn court in absence of judge, see G.S. 7A-96.

As to attachment for failure to obey writ of habeas corpus, see G.S. 17-16.

As to attachment against sheriff to be directed to coroner, see G.S. 17-18.

As to official deed, when sheriff selling or empowered to sell is out of office, see G.S. 39-5.

Legal Periodicals. - For a survey of 1996 developments in constitutional law, see 75 N.C.L. Rev. 2281 (1997).

CASE NOTES

This section obviously has no reference to final process. Person v. Newsom, 87 N.C. 142 (1882).

Cited in Messick v. Catawba County, 110 N.C. App. 707, 431 S.E.2d 489 (1993); Braswell v. Ellis, 950 F. Supp. 145 (E.D.N.C. 1995); Carter v. Good, 951 F. Supp. 1235 (W.D.N.C. 1996).


§ 162-14. Duty to execute process.

Every sheriff, by himself or his lawful deputies, shall execute and make due return of all writs and other process to him legally issued and directed, within his county or upon any river, bay or creek adjoining thereto, or in any other place where he may lawfully execute the same.

History

(1777, c. 218, s. 5, P.R.; 1821, c. 1110, P.R.; R.C., c. 105, s. 17; 1874, c. 33; Code, s. 2079; 1899, c. 25; Rev., s. 2817; C.S., s. 3936; 1973, c. 108, s. 98; 1983, c. 670, s. 8.)

Cross References. - As to service of process and return, see G.S. 1A-1, Rule 4.

As to failure to return process or making false return, see G.S. 14-242.

As to penalty for false return to writ of habeas corpus, see G.S. 17-27.

As to execution of summons, order of judgment, see G.S. 162-16.

As to liability of outgoing sheriff for unexecuted process, see G.S. 162-17.

Local Modification. - Bertie, Martin: 2008-79, s. 1.

Legal Periodicals. - For a survey of 1977 law on torts, see 56 N.C.L. Rev. 1136 (1978).

CASE NOTES

I. GENERAL CONSIDERATION.

Editor's Note. - Some of the cases below were decided under former provisions of this section as it read prior to the 1983 amendment, which provided penalties for neglecting to make returns and for making false returns.

"Return" Defined. - The term "return" means that the process must be brought back and produced in the court whence it issued with such endorsement as the law requires. Watson v. Mitchell, 108 N.C. 364, 12 S.E. 836 (1891).

The term "return" implies that the process is taken back, with such endorsements as the law requires, to the place from which it originated. Brogden Produce Co. v. Stanley, 267 N.C. 608, 148 S.E.2d 689 (1966).

Who May Issue Process. - Process can be issued by the mayor of a town or city to any lawful officer such as a sheriff, whose duty it then becomes to execute and make due return. State v. Cainan, 94 N.C. 880 (1886); Paul v. Washington, 134 N.C. 363, 47 S.E. 793 (1904).

Applied in East Carolina Lumber Co. v. West, 247 N.C. 699, 102 S.E.2d 248 (1958); Red House Furn. Co. v. Smith, 310 N.C. 617, 313 S.E.2d 569 (1984).

Cited in Boyd v. Robeson County, 169 N.C. App. 460, 621 S.E.2d 1 (2005), cert. denied, 359 N.C. 629, 615 S.E.2d 866 (2005).

II. PENALTIES.
A. IN GENERAL.

.

This section authorizes the following penalties and remedies: 1) An amercement nisi for $100.00 on "motion and proof" by the party aggrieved, for failure to "execute and make due return"; 2) A qui tam action for penalty of $500.00 for a "false return," one moiety to the party aggrieved, and the other to anyone who will sue for the same; 3) An action for damages by the party aggrieved; 4) An amercement nisi for $100.00 in justices' courts, on "motion and proof" by the party aggrieved, for "neglect or refusal" to execute process of such court. Piedmont Mfg. Co. v. Buxton, 105 N.C. 74, 11 S.E. 264 (1890); Rollins v. Gibson, 293 N.C. 73, 235 S.E.2d 159 (1977).

The public policy which prompted the enactment of this section is no less valid today, and the need for such a statute is no less real. Brogden Produce Co. v. Stanley, 267 N.C. 608, 148 S.E.2d 689 (1966).

The penalty is given to the party aggrieved chiefly as a punishment to the officer, and to stimulate him to active obedience. Red House Furn. Co. v. Smith, 63 N.C. App. 769, 306 S.E.2d 130 (1983), rev'd on other grounds, 310 N.C. 617, 313 S.E.2d 569 (1984).

The courts have no "dispensing power" to relieve a sheriff from the penalty imposed by this section. Swain v. Phelps, 125 N.C. 43, 34 S.E. 110 (1899); Brogden Produce Co. v. Stanley, 267 N.C. 608, 148 S.E.2d 689 (1966); Red House Furn. Co. v. Smith, 63 N.C. App. 769, 306 S.E.2d 130 (1983), rev'd on other grounds, 310 N.C. 617, 313 S.E.2d 569 (1984).

This section imposes no undue hardship upon sheriffs. Brogden Produce Co. v. Stanley, 267 N.C. 608, 148 S.E.2d 689 (1966); Red House Furn. Co. v. Smith, 63 N.C. App. 769, 306 S.E.2d 130 (1983), rev'd on other grounds, 310 N.C. 617, 313 S.E.2d 569 (1984).

Section Not Applicable to Federal Marshal. - Motion founded upon this section could not be allowed in federal district court, as such court has no power to enforce against a federal marshal a penalty imposed by the law of this State upon a sheriff for neglect of duty. Lowry v. Story, 31 F. 769 (W.D.N.C. 1887).

B. FAILURE TO MAKE DUE RETURN.

.

Essential Elements. - Delivery of process to officer and his failure to execute its commands and make due return are essential ingredients in the criminal dereliction of duty followed by penal consequences summarily enforced. Yeargin v. Wood, 84 N.C. 326 (1881).

The sheriff must be diligent in both the execution and return of process or suffer the $100.00 penalty provided in this section. Rollins v. Gibson, 293 N.C. 73, 235 S.E.2d 159 (1977); Red House Furn. Co. v. Smith, 63 N.C. App. 769, 306 S.E.2d 130 (1983), rev'd on other grounds, 310 N.C. 617, 313 S.E.2d 569 (1984).

Making Due Return Is an Affirmative Requirement. - The requirements that an officer having process in hand for service must note on the process the date received by him under G.S. 1A-1, Rule 4 and make due return thereof under G.S. 162-14 are affirmative requirements of these sections. State v. Moore, 230 N.C. 648, 55 S.E.2d 177 (1949).

What Constitutes Due Return. - Due return of process means a proper return, made in proper time. Waugh v. Brittain, 49 N.C. 470 (1857).

Due Return May Be Mixed Question of Law and Fact. - Whether, in any particular case, a due return has been made, may involve questions both of law and fact. Whether the return is a proper one in form and substance is a question of law to be decided by the court, but whether it was made in proper time is a question of fact to be decided by the jury. Waugh v. Brittain, 49 N.C. 470 (1857).

Whether the return was made in proper time is a question of fact to be decided by the jury. Brogden Produce Co. v. Stanley, 267 N.C. 608, 148 S.E.2d 689 (1966).

Section Prescribes Exclusive Method of Recovering Penalty. - The method by which a sheriff may be amerced for unlawfully failing to execute a warrant, as prescribed by this section, is alone to be followed in an action for a penalty brought thereunder. Walker v. Odom, 185 N.C. 557, 118 S.E. 2 (1923).

This section provides only for an amercement, on motion, for the failure of a sheriff to make due and proper return of process. See also Harrell v. Warren, 100 N.C. 259, 6 S.E. 777 (1888), overruled on other grounds in Rollins v. Gibson, 293 N.C. 73, 235 S.E.2d 159 (1977); Piedmont Mfg. Co. v. Buxton, 105 N.C. 74, 11 S.E. 264 (1890).

A civil action cannot be resorted to in order to recover the penalty prescribed by this section. Piedmont Mfg. Co. v. Buxton, 105 N.C. 74, 11 S.E. 264 (1890).

Controlling Effect of Exemption Laws. - The provisions of the exemption laws (N.C. Const., Art. X, and the statutes passed in pursuance thereof) so modify Battle's Revisal, c. 106, G.S. 15 (now this section) as not to authorize the infliction of the penalty therein imposed for obedience to said exemption laws. Richardson v. Wicker, 80 N.C. 172 (1879).

An amercement is a penalty for a fixed sum without regard to the amount of plaintiff's damage. Thompson v. Berry, 65 N.C. 484 (1871); Brogden Produce Co. v. Stanley, 267 N.C. 608, 148 S.E.2d 689 (1966).

Purpose of Penalty. - The $100.00 is given to the plaintiff in the execution upon the theory that he is aggrieved, but chiefly as a punishment to the officer and to stimulate him to active obedience. Brogden Produce Co. v. Stanley, 267 N.C. 608, 148 S.E.2d 689 (1966).

Sheriff cannot be amerced if he returns an execution within the time prescribed by law, even though he fails to return the money levied thereon into court or pay it to the party or his attorney. Davis v. Lancaster, 5 N.C. 255 (1809); Cockerham v. Baker, 52 N.C. 288 (1859).

Time for Return. - Executions shall be returnable to the term (session) of the court next after that from which they bear teste; the sheriff is allowed all the days of the term (session) to return an execution, unless he be ruled, upon motion and cause shown, to return it on some intermediate day. Person v. Newsom, 87 N.C. 142 (1882); Turner v. Page, 111 N.C. 291, 16 S.E. 174 (1892).

A sheriff who fails to make return of process before the adjournment of the court to which it is returnable is subject to the penalty prescribed by statute. Boyd v. Teague, 111 N.C. 246, 16 S.E. 338 (1892); Turner v. Page, 111 N.C. 291, 16 S.E. 174 (1892).

Process Must Be Delivered 20 Days Before Session. - To bring a delinquent officer within the provisions of this section and subject him to its pains, process must be delivered to him 20 days before it is to be returned, and there must be "proof of such delivery." Yeargin v. Wood, 84 N.C. 326 (1881).

Delivery of Process by Mail. - The proof was sufficient for an amercement nisi under former rulings where it was shown that the process in an envelope properly directed and with postage prepaid was deposited in the post office in time to enable it to reach its destination in the due course of the mail 20 days before the session of the court to which it was returnable. State v. Latham, 51 N.C. 233 (1858); Yeargin v. Wood, 84 N.C. 326 (1881).

When Writ Sent to Wrong Sheriff. - If a clerk sent a writ to the sheriff of another county, enclosed in a stamped envelope, in due time to reach him in the regular course of the mails, 20 days before the sitting of the court to which it was returnable, it would be sufficient to authorize a judgment nisi for an amercement for the nonreturn of the process. State v. Latham, 51 N.C. 233 (1858); Cockerham v. Baker, 52 N.C. 288 (1859).

Making Return by Mail. - If the mail can be used as a medium by which process can be transmitted to a sheriff, so as to charge him with its reception, it would seem that he ought to be allowed to adopt the same means for making his return, at least so far as the due time of the return is involved. In Waugh v. Brittain, 49 N.C. 470 (1857), it was intimated that he might do so, and that he would be excused if the letter endorsing the process, with his return upon it, was properly mailed in due time. Cockerham v. Baker, 52 N.C. 288 (1859).

Sheriff who goes out of office before return day of writ is not subject to amercement for failure to return it. McLin v. Hardie, 25 N.C. 407 (1843); State ex rel. Parker v. Woodside, 29 N.C. 296 (1847).

Until his fees are paid or tendered, sheriff is not bound to execute process. Johnson v. Kenneday, 70 N.C. 435 (1874).

Failure to Pay Fees as Excuse for Failure to Make Return. - Though a sheriff is not required to execute process until his fees are paid or tendered by the person at whose expense the service is to be rendered, he is not excused thereby for a failure to make a return of process; for, if he has any excuse for not executing the writ, he must state it in his return. Jones v. Gupton, 65 N.C. 48 (1871).

The highest considerations of public policy require that sheriffs shall not be negligent in the service of process committed to them. Ignorance of the officer is no excuse. Whether any damage was done to the plaintiff is immaterial. The amercement is for failure to discharge an official duty. Brogden Produce Co. v. Stanley, 267 N.C. 608, 148 S.E.2d 689 (1966).

It is no excuse that the sheriff has no corrupt or bad intentions and that the plaintiff is saved from any resulting injury by the voluntary appearance of the defendant. Brogden Produce Co. v. Stanley, 267 N.C. 608, 148 S.E.2d 689 (1966).

Endorsing Process "Served". - While it is a better practice for officers to make their returns of process show with particularity upon whom and in what manner the process was served, their endorsement "served" implies service as the law requires, and such return, signed by the officer in his official capacity, is sufficient to show prima facie service at least; error in the date of service is immaterial. State v. Moore, 230 N.C. 648, 55 S.E.2d 177 (1949).

Endorsing Execution "Satisfied". - Where a sheriff merely endorsed upon an execution the word "satisfied," without stating what disposition he had made of the fund, the return was nevertheless sufficient in law to relieve him from an amercement for not making due return. Wyche v. Newsom, 87 N.C. 142 (1882).

Order Restraining Further Prosecution of Action in Which Execution Issued. - Where sheriff failed to serve execution of a judgment against defendant in summary ejectment to remove her from land because of an intervening order restraining plaintiff from further prosecuting the summary ejectment, issued in a prior pending action to try title, motion to amerce the sheriff for failure to serve the execution was properly denied, since the sheriff had shown sufficient cause for failing to serve the execution. Massengill v. Lee, 228 N.C. 35, 44 S.E.2d 356 (1947).

Liability of Sheriff. - Where a scire facias was issued on a judgment, the sheriff was liable to amercement for failure to return the process, even though the parties had agreed, while it was in the sheriff's hands, that the collection of the money should be suspended, so as to enable them to make a full settlement. Morrow v. Allison, 33 N.C. 217 (1850).

An agreement to suspend collection of the debt, or to stay the execution, as it is commonly called, even if communicated to the sheriff, gives no authority to the officers not to return the writ. Brogden Produce Co. v. Stanley, 267 N.C. 608, 148 S.E.2d 689 (1966).

Belief That Lien Was Divested by Subsequent Legislation. - A sheriff is liable to be amerced for a return on a vend. ex. of "no goods," etc., after levy, although made in the belief that the lien has been divested by subsequent legislation. McKeithan v. Terry, 64 N.C. 25 (1870).

Erroneous Impression of Return Day. - It is not a defense to an action to recover the penalty prescribed by the section that sheriff had the erroneous impression that the summons was returnable at a later date, and that his failure to make his return within the time required was occasioned by endeavoring to obtain service. Bell v. Wycoff, 131 N.C. 245, 42 S.E. 608 (1902).

Refusal or Inability of Clerk to Receive Return. - It is not a sufficient excuse to an officer for neglecting to return a process to the proper term (session) of the court that he had tendered it to the clerk, who had refused to receive it, nor that the clerk had died during the term (session). Hamlin v. March, 31 N.C. 35 (1848).

Failure to Collect Where Debtor Had No Property in Excess of Exemptions. - A sheriff was not liable to amercement for failure to have in court the amount of an execution issued on a judgment for a debt contracted prior to 1868, when the judgment debtor had no property in excess of his exemptions, under the applicable law. Richardson v. Wicker, 80 N.C. 172 (1879).

Officer Held Liable for Penalty. - A sheriff who had not sold property under execution nor made return on writs of venditioni exponas should be amerced. Anonymous, 2 N.C. 415 (1796).

A return by sheriff on a fieri facias that he had levied on goods subject to older executions, without stating whether he had sold the property seized or still held it, was not a due return, and subjected him to amercement. Buckley v. Hampton, 23 N.C. 322 (1840).

A return of a sheriff to a fieri facias that "he had made a levy on personal property and taken a forthcoming bond, but had not sold it, that the obligors did not deliver the property on the day, and that, after the day, it was too late to make a sale," was not such a "due return" of the process as will exempt the sheriff for amercement. Frost v. Rowland, 27 N.C. 385 (1845).

Officer Held Not Liable for Penalty. - Where summons sent by mail did not reach officer until six days before the sitting of the court to which it was returnable, and he served it in two days thereafter, he was not liable to amercement. Yeargin v. Wood, 84 N.C. 326 (1881).

Where a sheriff endorsed upon an execution the words "debt and interest due to sheriff, costs paid into office," and upon another the word "satisfied," without stating what disposition he had made of the fund, the returns were held to be sufficient in law to relieve the sheriff from amercement for not making "due return." Person v. Newsom, 87 N.C. 142 (1882).

Jurisdiction of Superior Court. - Where the sheriff has laid himself liable to the penalty for failure to make due return of process, the superior court has jurisdiction to give the judgment nisi on motion. Thompson v. Berry, 64 N.C. 79 (1870).

Party Aggrieved Is Entitled to Judgment Nisi as of Course. - Upon motion and proof that a sheriff has failed to return process delivered to him, as directed in the process and required by law, the party aggrieved is entitled, as of course, to judgment nisi against him. Brogden Produce Co. v. Stanley, 267 N.C. 608, 148 S.E.2d 689 (1966).

Penalty Is Imposed Unless Sheriff Shows Cause at Next Succeeding Term to Vacate Amercement. - The penalty is imposed upon the delinquency of the sheriff for failing to make due return of the execution unless, at the next succeeding term after judgment nisi is entered against him, he shows to the court sufficient cause to vacate the tentative amercement. Brogden Produce Co. v. Stanley, 267 N.C. 608, 148 S.E.2d 689 (1966).

Making Judgment Nisi Absolute. - Where judgment nisi for $100.00 is rendered against a sheriff for failure to make due return of process, and no sufficient reason is shown for such failure, the judgment should be made absolute. C.E. Graham & Co. v. Sturgill, 123 N.C. 384, 31 S.E. 705 (1898).

Setting Aside Judgment Absolute. - In a proceeding to enforce the statutory penalty against a sheriff for failure to make due return of process, it is not error to set aside a judgment absolute where it appears that he had no notice of the rule upon him to show cause. Yeargin v. Wood, 84 N.C. 326 (1881).

Amercement at Subsequent Session. - A sheriff who fails to execute and return process shall be subject to a penalty to be paid to the party aggrieved, by order of the court, on motion and proof that process was delivered to him before the sitting of the court to which it was returnable, unless the sheriff shows sufficient cause to the court for his failure "at the court next succeeding such order." And there is nothing in the statute to prevent a sheriff who does not return process from being amerced at a subsequent term (session) to that to which the return should have been made. Halcombe v. Rowland, 30 N.C. 240 (1848).

A sheriff may be amerced for a nonreturn of process at a term (session) subsequent to that at which the process was returnable. Hyatte v. Allison, 48 N.C. 533 (1856).

As to the time of trial, see Hogg v. Bloodworth, 1 N.C. 593 (1804).

Effect of Surplusage in Affidavit. - When a prima facie case is made against a sheriff, either upon affidavit or other sufficient proof, a rule nisi is granted as of course, and surplusage in the affidavit will not impair its effect. Ex parte Schenck, 63 N.C. 601 (1869).

Trial on Affidavits. - On a scire facias against a sheriff to amerce him for not returning an execution into the Supreme Court, whence it issued, issues of fact must be tried on affidavits, as the court has no power to call a jury. Kea v. Melvin, 48 N.C. 243 (1855).

C. FALSE RETURNS.

.

This section applies to process issued in criminal, as well as civil, proceedings, and Martin v. Martin, 50 N.C. 349 (1858) and Harrell v. Warren, 100 N.C. 259, 6 S.E. 777 (1888) are hereby overruled. Rollins v. Gibson, 293 N.C. 73, 235 S.E.2d 159 (1977).

A return untrue in fact is a false return within the intent and meaning of this section. Crowder v. Jenkins, 11 N.C. App. 57, 180 S.E.2d 482 (1971).

The importance of veracity of quasi-judicial records led to adoption of the stringent rule that every untrue return, in fact, is a false return within the purview of this section. Rollins v. Gibson, 293 N.C. 73, 235 S.E.2d 159 (1977).

Falseness in Point of Fact Essential to Liability. - In order to render a sheriff liable for a false return under the section, falsehood must be found in the statement of facts in the return. Harrell v. Warren, 100 N.C. 259, 6 S.E. 777 (1888), overruled on other grounds in Rollins v. Gibson, 293 N.C. 73, 235 S.E.2d 159 (1977).

For the sheriff to incur the heavy $500.00 penalty, the return must be false in point of fact, and not false merely as importing, from facts truly stated, a wrong legal conclusion. Rollins v. Gibson, 293 N.C. 73, 235 S.E.2d 159 (1977).

To subject one to the heavy penalty of this section, the falseness must be stated as a fact and not merely by way of inference from facts. Rollins v. Gibson, 293 N.C. 73, 235 S.E.2d 159 (1977).

A false inference in a return will render the return false only if the facts are omitted from the return. Where the facts underlying the inference or conclusion are truly stated in the return there can be no liability for a false return, even though the sheriff may still be exposed to a lesser liability for failing to execute the writ or for not making a proper and legal return. Rollins v. Gibson, 293 N.C. 73, 235 S.E.2d 159 (1977).

Conclusion That Defendant Cannot Be Found as Basis for False Return. - The conclusion found in a return that the defendant "after a due and diligent search is not to be found," without more, if untrue, may be the basis for a finding of a false return. Rollins v. Gibson, 293 N.C. 73, 235 S.E.2d 159 (1977).

A sheriff can be liable under this section for a return of criminal process which states only that a defendant "after due and diligent search is not to be found," when a jury finds, upon sufficient competent evidence, that the return is false. Rollins v. Gibson, 293 N.C. 73, 235 S.E.2d 159 (1977).

The return of "Not to be found" on a capias, because of defendant's being out of the State at the time the return is made, is not true if the officer had an opportunity of making the arrest previously, while the process was in his hands. Martin v. Martin, 50 N.C. 349 (1858), overruled on other grounds in Rollins v. Gibson, 293 N.C. 73, 235 S.E.2d 159 (1977). See also, Tomlinson v. Long, 53 N.C. 469 (1862); Harrell v. Warren, 100 N.C. 259, 6 S.E. 777 (1888), overruled on other grounds in Rollins v. Gibson, 293 N.C. 73, 235 S.E.2d 159 (1977).

Damage to Plaintiff Immaterial. - It is immaterial in a civil action for the $500.00 penalty whether any damage was done to the plaintiff. Rollins v. Gibson, 293 N.C. 73, 235 S.E.2d 159 (1977).

The $500.00 penalty is not intended to be a substitute for damages to an injured party, as this section allows the party aggrieved to bring a separate action for damages. Rollins v. Gibson, 293 N.C. 73, 235 S.E.2d 159 (1977).

Mistake, Inadvertence and Intent Immaterial. - A return made by a sheriff that is false in fact, even though the officer was mistaken in the manner as to which he made his return, will nevertheless, subject him to the penalty for a false return. Albright v. Tapscott, 53 N.C. 473 (1862).

If a return is false in fact, the officer's inadvertence or mistake is no excuse or protection, even though no intentional deceit was practiced. Harrell v. Warren, 100 N.C. 259, 6 S.E. 777 (1888), overruled on other grounds in Rollins v. Gibson, 293 N.C. 73, 235 S.E.2d 159 (1977).

Every return untrue in fact is a false return within this section, even though the officer may be mistaken in the matter or insert the fact in his return by inadvertence. It is immaterial that the officer had no selfish purpose to subserve, or was unmoved by any criminal intent. If in returning to the court his action under an execution, his return is false in its facts or any of the facts touching the things done under it, he is as well exposed to the penalty of $500.00 as if the false facts were willfully and corruptly inserted. Crowder v. Jenkins, 11 N.C. App. 57, 180 S.E.2d 482 (1971); Rollins v. Gibson, 293 N.C. 73, 235 S.E.2d 159 (1977).

Officer Held Liable for False Return. - Where a sheriff returned upon a fieri facias two credits for money received thereon at different times, but suppressed a third credit, and marked his return not satisfied, such return was false, and subjected him to the penalty of $500.00. Martin v. Martin, 50 N.C. 346 (1858).

Officer Held Not Liable for False Return. - Where a sheriff endorsed truly the day on which he received a declaration in ejectment, returnable to a county court, and returned on the same "too late to hand," although five days intervened between the day endorsed and the return day, he was not liable for the penalty for making a false return. Hassell v. Latham, 52 N.C. 465 (1860).

Where an execution was placed in sheriff's hands and levied by him on the goods of the defendant therein named; defendant in execution, at the time of the levy, demanded that his exemptions be allotted to him and paid the sheriff $2.50 in partial satisfaction of the execution; and after keeping the goods several days and receiving the $2.50, the sheriff returned the execution, "Levy made; fees demanded for laying off exemptions and not paid; no further action taken", failure to mention the payment of $2.50 in the return made the return defective, but did not render the sheriff liable to the penalty imposed for a false return. Harrell v. Warren, 100 N.C. 259, 6 S.E. 777 (1888), overruled on other grounds in Rollins v. Gibson, 293 N.C. 73, 235 S.E.2d 159 (1977).

Where a deputy sheriff who had an order of arrest to be executed went to the house of the person named therein and, after reading to him the summons in the action, told him that he had an order of arrest for him, but after some talk, left the bond with him, on his promise to call next day and fix the matter up, as the deputy did not have or attempt to have within his control in any way the party named in the order, there was no arrest, and a return of the order "Not served" did not render the officer liable for a false return. State ex rel. Lawrence v. Buxton, 102 N.C. 129, 8 S.E. 774 (1889).

Where a sheriff, having in hand an order of arrest against an individual, told him that he "had better come and go with him to Jackson, and fix the matter there", but the individual refused to go with him, and the sheriff left, without taking any further action, what passed did not constitute an arrest, and therefore the sheriff was not liable for a false return in returning "not served" on the order of arrest. State ex rel. Lawrence v. Buxton, 102 N.C. 129, 8 S.E. 774 (1889).

Penalty to Be Enforced in Civil Action. - The action for $500.00 penalty for "false return" is properly sought to be maintained by civil action. Piedmont Mfg. Co. v. Buxton, 105 N.C. 74, 11 S.E. 264 (1890).

The correct procedure under this section to recover the penalty from a sheriff for making a false return is by civil action. Crowder v. Jenkins, 11 N.C. App. 57, 180 S.E.2d 482 (1971).

Any person may sue for the penalty imposed upon sheriffs by this section for a false return, and need not mention in his complaint the other party to whom the statute gives one half of the recovery. Harrell v. Warren, 100 N.C. 259, 6 S.E. 777 (1888), overruled on other grounds, Rollins v. Gibson, 293 N.C. 73, 235 S.E.2d 159 (1977). See also Martin v. Martin, 50 N.C. 349 (1858), overruled on other grounds, Rollins v. Gibson, 293 N.C. 73, 235 S.E.2d 159 (1977); Peebles v. Newsom, 74 N.C. 473 (1876).

Power of Court to Allow Return to Be Amended. - Where a sheriff to whom a summons issued returned it "served," and was sued for the $500.00 penalty for false return provided for by this section, the court properly permitted him, for proper reasons set out in his affidavit, to amend this return. Swain v. Burden, 124 N.C. 16, 32 S.E. 319 (1899); Swain v. Phelps, 125 N.C. 43, 34 S.E. 110 (1899).

The court has the discretionary power, in proper cases, to allow a sheriff to amend his return of process to speak the truth, even though the amendment will defeat the penalty for a false return. Crowder v. Jenkins, 11 N.C. App. 57, 180 S.E.2d 482 (1971).

A sheriff may move to amend his return of process so as to make it speak the truth even after suit has been brought for the penalty imposed for a false return, even though the amendment defeats plaintiff's right to recover such penalty. However, the sheriff does not as a matter of law have the right to amend his return in order to correct his error, but it is within the discretion of the presiding judge to allow such amendments in meritorious cases. Rollins v. Gibson, 293 N.C. 73, 235 S.E.2d 159 (1977).

Amendment of Return Held Improper. - It was not proper for the trial judge to permit defendants to amend return during course of trial where plaintiff alleged and defendants admitted that the return had been marked "served by delivering a copy thereof to this plaintiff" but that the sheriff "did not serve the original order of court upon the plaintiff," and where the parties stipulated at a pretrial conference that the return showing "that it was delivered to the plaintiff was not correct." Crowder v. Jenkins, 11 N.C. App. 57, 180 S.E.2d 482 (1971).

Time For Appeal Where Return Amended. - When, in an action against a sheriff for a false return, the court permits such return to be amended, the plaintiff should note his exception and, unless the amended return is admitted to be true, proceed to try the issue. An appeal before final judgment on such admission or a verdict is premature and will be dismissed. Piedmont Mfg. Co. v. Buxton, 105 N.C. 74, 11 S.E. 264 (1890).

When the falsity of the return was alleged and not controverted, the issue of the truth or falsity of the return was removed from the case. Crowder v. Jenkins, 11 N.C. App. 57, 180 S.E.2d 482 (1971).

Statute of Limitations. - Action upon sheriff's official bond to recover the penalty for a false return made more than six years previously was barred by the statute of limitations. State ex rel. Hobbs v. Barefoot, 104 N.C. 224, 10 S.E. 170 (1889).

Opinions of Attorney General

Any depository for criminal process which has been legally issued and directed to sheriff must remain within control and supervision of sheriff because it is the sheriff who is responsible, by law, for its proper and timely service. See opinion of Attorney General to Honorable Frank W. Snepp, Jr., Senior Resident Superior Court Judge, Mecklenburg County, 58 N.C.A.G. 30 (1988).

§ 162-15. Imposition of penalty; procedure.

In any case in which a person aggrieved seeks the imposition of penalties against a sheriff for failure or neglect to perform any duty of office or for any default in office as provided in G.S. 162-12, he may proceed by motion in the cause, supported by an affidavit, in a pending action. Upon the filing of a motion in the cause the clerk shall deliver a copy of the motion and affidavit and an order to show cause to the sheriff.

History

(1871-2, c. 74, s. 4; Code, s. 446; Rev., s. 2818; C.S., s. 3937; 1983, c. 670, s. 9.)

CASE NOTES

Editor's Note. - Some of the cases below were decided under this section as it read prior to amendment in 1983.

Amercement as Remedy for Failure to Make Due Return. - Amercement, and not a civil action, is the remedy given against a sheriff for not making "due and proper" return of process. Piedmont Mfg. Co. v. Buxton, 105 N.C. 74, 11 S.E. 264 (1890).

Jurisdiction in Court to Which Process Returnable. - An action against a sheriff of a county other than that from which the process issued, for making a false return, is properly brought in the courts of the county to which that process was returnable. Watson v. Mitchell, 108 N.C. 364, 12 S.E. 836 (1891).

Sheriff may be amerced at a subsequent term to that at which process was returnable, for not having made his return at a previous term. Hyatte v. Allison, 48 N.C. 533 (1856).

Failure to Make Return Not Excused by Nonpayment of Fees. - While a sheriff is not required to execute process until his fees are paid or tendered by the person at whose instance the service is to be rendered, this does not excuse him for failure to make return of the process. Jones v. Gupton, 65 N.C. 48 (1871).

Rule Nisi Granted on Prima Facie Case. - Where a prima facie case is made, either upon affidavit or other sufficient proof, a rule nisi is granted as of course. Ex parte Schenck, 63 N.C. 601 (1869).

Return Prima Facie Correct. - The return or certificate of a ministerial officer, as to what he has done out of court, is only to be taken as prima facie true, and is not conclusive; it may be contradicted by any evidence and shown to be false, antedated, etc. Smith v. Lowe, 27 N.C. 197 (1844).

Immaterial Evidence. - On the trial of an action for penalty, evidence of the true returns of the proceeds of sale endorsed upon certain other executions was immaterial and properly excluded. Finley v. Hayes, 81 N.C. 368 (1879).

For case holding sheriff entitled to relief from judgment for alleged failure to make due return of process, see Francks v. Sutton, 86 N.C. 78 (1882).


§ 162-16. Execute summons, order or judgment.

Whenever the sheriff may be required to serve or execute any summons, order or judgment, or to do any other act, he shall be bound to do so in like manner as upon process issued to him, and shall be equally liable in all respects for neglect of duty; and if the sheriff be a party, the coroner shall be bound to perform the service, as he is now bound to execute process where the sheriff is a party; and this Chapter relating to sheriffs shall apply to coroners when the sheriff is a party. Sheriffs and coroners may return process by mail. Their liabilities in respect to the execution of process shall be as prescribed by law.

In those counties where the office of coroner has been abolished, or is vacant, and in which process is required to be served or executed on the sheriff, the authority to serve or execute such process shall be vested in the clerk of court; however, the clerk of court is hereby empowered to designate and direct by appropriate order some person to act in his stead to serve or execute the same.

History

(C.C.P., s. 354; Code, s. 598; Rev., s. 2819; C.S., s. 3938; 1971, c. 653, s. 1.)

CASE NOTES

A constable cannot serve process addressed to the sheriff, nor can a sheriff serve process addressed to a constable. McGloughan v. Mitchell, 126 N.C. 681, 36 S.E. 164 (1900).

Applicability in Denial of Motion to Dismiss. - Although a deputy's motion to dismiss was couched in terms of lack of jurisdiction under G.S. 1A-1-12(b)(2), it actually raised a question of sufficiency of service or process; therefore, because denial of the motion was interlocutory and did not fall within the ambit of G.S. 1-277(b), G.S. 162-16 was inapplicable and the motion had to be dismissed. Webb v. Price, 210 N.C. App. 261, 708 S.E.2d 94 (2011).

Service by Coroner Where Sheriff Is a Codefendant. - In an action wherein the sheriff is a party defendant, it is proper that a summons issued against a codefendant should be addressed to and served by the coroner. State ex rel. Battle v. Baird, 118 N.C. 854, 24 S.E. 668 (1896).

Service By Deputy Sheriffs in an Action Against Deputy. - Where a deputy is sued for actions within the alleged scope of his duties for which the Sheriff himself may be held liable, the Sheriff clearly has an interest in the litigation, and is barred from serving process; similarly, because the Sheriff's deputies act as his agents, they cannot serve process on anyone in a case in which the Sheriff is an interested party. Goodwin v. Furr, 25 F. Supp. 2d 713 (M.D.N.C. 1998).

Residents failed to comply with G.S. 162-16, and therefore a sheriff and deputy were never properly served with summons, where another deputy served both the sheriff and the deputy; such service was improper since the clerk of court never designated that deputy as her agent to serve the sheriff and the deputy. Mabee v. Onslow County Sheriff's Dep't, 174 N.C. App. 210, 620 S.E.2d 307 (2005), cert. dismissed, 360 N.C. 364, 629 S.E.2d 854 (2006).

Authority of Coroner Where Sheriff Insane. - The county commissioners may declare the office vacant upon the insanity of the sheriff, but their failure to do so merely authorizes the coroner to perform the duties of sheriff proper, and does not cast upon him the right to collect taxes. State ex rel. Somers v. Board of Comm'rs, 123 N.C. 582, 31 S.E. 873 (1898).

If a court issuing process has general jurisdiction to issue such process and the want of jurisdiction does not appear upon the face of the paper, a sheriff and his assistants may justify under it. State v. Ferguson, 67 N.C. 219 (1872).


§ 162-17. Duties of outgoing sheriff for unexecuted process.

It shall be the duty of any sheriff who shall have received a precept, and shall go out of office before the return day thereof, without having executed the same, to deliver same to the succeeding sheriff with sufficient time allowed for it to be executed by him.

History

(R.C., c. 105, s. 25; Code, s. 2088; Rev., s. 2820; C.S., s. 3939; 1983, c. 670, s. 10.)

CASE NOTES

Sheriff to whom a writ has been delivered, who goes out of office before the return day of the writ, has no power to make the return on it, and therefore is not liable to amercement for not doing so. State ex rel. Parker v. Woodside, 29 N.C. 296 (1847).

Duty to Make Delivery to Successor. - It is the duty of the sheriff, going out of office, to deliver all the processes remaining in his hands to his successor. State ex rel. Parker v. Woodside, 29 N.C. 296 (1847).


§ 162-18. Payment of money collected on execution.

In all cases where a sheriff has collected money upon an execution placed in his hands, if there be no bona fide contest over the application thereof, he shall immediately pay the same into the office of the clerk of the court from which the execution issued.

History

(Code, s. 2080; Rev., s. 2821; C.S., s. 3940; 1983, c. 670, s. 11; 2021-47, s. 14(d).)

Effect of Amendments. - Session Laws 2021-47, s. 14(d), effective June 18, 2021, deleted "to the plaintiff, or” preceding "into the office of the clerk”.

CASE NOTES

Auditing of sheriff's account by county commissioners is prima facie evidence of its correctness, and it is impeachable only for fraud or special error. Williamson v. Jones, 127 N.C. 178, 37 S.E. 202 (1900); Commissioners of Duplin County v. Kenan, 127 N.C. 181, 37 S.E. 997 (1900).


§ 162-19: Repealed by Session Laws 1953, c. 973, s. 3.

§§ 162-20, 162-21: Repealed by Session Laws 1983, c. 670, ss. 12, 13.

§ 162-22. Custody of jail.

The sheriff shall have the care and custody of the jail in his county; and shall be, or appoint, the keeper thereof.

No law-enforcement officer or jailer who shall have the care and custody of any jail shall receive any portion of any jail fee or charge paid by or for any person confined in such jail, nor shall the compensation or remuneration of such officer be affected to any extent by the costs of goods or services furnished to any person confined in such jail.

History

(R.C., c. 105, s. 22; Code, s. 2085; Rev., s. 2824; C.S., s. 3944; 1967, c. 581, s. 3; 1969, c. 1090; 1983, c. 670, s. 14.)

Legal Periodicals. - For note as to sheriff's liability for prisoner suicide, in light of Helmly v. Bebber, 77 N.C. App. 275, 335 S.E.2d 182 (1985), see 64 N.C.L. Rev. 1520 (1986).

For note, "North Carolina County Jail Inmates' Right of Access to Courts," see 66 N.C.L. Rev. 583 (1988).

For a survey of 1996 developments in constitutional law, see 75 N.C.L. Rev. 2281 (1997).

For article, "A Localist Reading of Local Immigration Regulations," see 86 N.C.L. Rev. 1619 (2008).

CASE NOTES

Duties of Jailer. - The duties of a jailer are those prescribed by statute and those recognized at common law. Gowens v. Alamance County, 216 N.C. 107, 3 S.E.2d 339 (1939).

Assistant jailer is created by statute for purposes of public official immunity since: (1) the sheriff, a position created by N.C. Const., Art. VII, § 2, is permitted by G.S. 162-22 and G.S. 162-24 to employ others, including assistant jailers, to assist him in performing his official duties to operate the jail; (2) assistant jailers are charged with the care, custody and maintenance of prisoners. (3) detention officers such as jailers have been described in G.S. 17E-2 as a person, who through the special trust and confidence of the sheriff, has been appointed as a detention officer by the sheriff; and (4) under G.S. 153-224(a), the jail cannot operate without custodial personnel to supervise and maintain the safe custody and control of the prisoners. Baker v. Smith, 224 N.C. App. 423, 737 S.E.2d 144 (2012).

Bailiff Is "Keeper of a Jail." - Defendant fell within the definition of a "keeper of a jail" in the context of G.S. 162-55 because defendant worked as a courtroom bailiff whose duties included the care, custody, and maintenance of prisoners. State v. Shepherd, 156 N.C. App. 603, 577 S.E.2d 341 (2003).

Jailer Held Answerable Only to Sheriff. - Where a sheriff arrested a man on a ca. sa. and committed him to jail in custody of the jailer, and the prisoner escaped, it was held that without a bond of indemnity, the jailer was only bound to the sheriff for want of fidelity or due care in the discharge of his duty. Turrentine v. Faucett, 33 N.C. 652 (1850).

Sheriff has a right to take a bond from jailer to indemnify him for all losses to which he may be subjected by the escape of a prisoner while in custody of the jailer. Turrentine v. Faucett, 33 N.C. 652 (1850).

Sheriff Responsible for Care and Custody of Inmates. - For purposes of 42 U.S.C.S. § 1983 liability, under North Carolina law, a sheriff had final policy making authority over personnel matters and had sole statutory responsibility for the care and custody of inmates at county jail. However, claims of excessive force, deliberate indifference, and failure to provide supervision and proper training failed because, inter alia, there were policies in effect requiring members of the sheriff's office to use only necessary force, addressing medical needs of inmates and detainees, and providing training standards and requirements. Oliver v. Baity, 208 F. Supp. 3d 681 (M.D.N.C. 2016).

Liability of Sheriff for Negligence of Deputy in Charge of Jail. - Where the evidence was sufficient to be submitted to the jury as to the negligence of a deputy in charge of a jail in causing injury to a prisoner in closing the cell door on the prisoner's thumb, it was sufficient to be submitted to the jury as to the liability of the sheriff, since the act of the deputy was within the scope of his authority and in the line of his duty, and the liability of the sheriff for acts of his deputy is governed by the law applicable to the law of principal and agent. Davis v. Moore, 215 N.C. 449, 2 S.E.2d 366 (1939), overruled, 217 N.C. 279, 7 S.E.2d 563 (1940).

County Not Liable for Actions at Jail. - Arrestee's claims for mistreatment against a State were barred by sovereign immunity. The county was dismissed because the sheriff, not the county, had final policymaking authority over the personnel decisions in his office and the sole responsibility for the care of the inmates at the county jail under G.S. 162-22. Landry v. North Carolina, - F. Supp. 2d - (W.D.N.C. Aug. 22, 2011).

Cited in Sutton v. Williams, 199 N.C. 546, 155 S.E. 160 (1930); Wilkie v. Henderson County, 1 N.C. App. 155, 160 S.E.2d 505 (1968); Berch v. Stahl, 373 F. Supp. 412 (W.D.N.C. 1974); State v. Jones, 41 N.C. App. 189, 254 S.E.2d 234 (1979); Knight v. Vernon, 23 F. Supp. 2d 634 (M.D.N.C. 1998); Leonard v. Bell, 254 N.C. App. 694, 803 S.E.2d 445 (2017).

Opinions of Attorney General

Criminal Intake Center. - County manager must place Criminal Intake Center, a facility for the reception of persons charged with crime which includes detention cells for at least 48 persons, used to detain certain prisoners overnight and to house disruptive persons, drunks, etc., under the care and custody of the sheriff. See opinion of Attorney General to Honorable Frank W. Snepp, Jr., Senior Resident Superior Court Judge, Mecklenburg County, 58 N.C.A.G. 30 (1988).

§ 162-23. Prevent entering jail for lynching; county liable.

When the sheriff of any county has good reason to believe that the jail of his county is in danger of being broken or entered for the purpose of killing or injuring a prisoner placed by the law in his custody, it shall be his duty at once to call on the commissioners of the county, or some one of them, for a sufficient guard for the jail, and in such case, if the commissioner or commissioners fail to authorize the employment of necessary guards to protect the jail, and by reason of such failure the jail is entered and a prisoner killed, the county in whose jail the prisoner is confined shall be responsible in damages, to be recovered by the personal representatives of the prisoner thus killed, by action begun and prosecuted before the superior court of any county in this State.

History

(1893, c. 461, s. 7; Rev., s. 2825; C.S., s. 3945.)

§ 162-24. Delegation of official duties.

The sheriff may not delegate to another person the final responsibility for discharging his official duties, but he may appoint a deputy or employ others to assist him in performing his official duties.

History

(23 Hen. VI, c. 10; R.C., c. 105, s. 21; Code, s. 2084; Rev., s. 2828; C.S., s. 3946; 1983, c. 670, s. 15.)

Legal Periodicals. - For note as to sheriff's liability for prisoner suicide, in light of Helmly v. Bebber, 77 N.C. App. 275, 335 S.E.2d 182 (1985), see 64 N.C.L. Rev. 1520 (1986).

CASE NOTES

Editor's Note. - Most of the cases below were decided under this section as it read prior to amendment in 1983, when it prohibited a sheriff from "letting to farm" his county.

Traffic in public offices is against good morals and contrary to public policy. Basket v. Moss, 115 N.C. 448, 20 S.E. 733 (1894).

This section prohibits a sheriff from letting to farm, in any manner, his county, or any part of it. Cansler v. Penland, 125 N.C. 578, 34 S.E. 683 (1899), rehearing dismissed, 126 N.C. 793, 36 S.E. 285 (1900).

Office Cannot Be Subject of Bargain and Sale. - The public has an interest in the proper performance of their duties by public officers, and would be prejudiced by agreements tending to impair an officer's efficiency or in any way to interfere with or disturb the due execution of the duties of the office. The office of sheriff and tax collector is one of public confidence and fidelity to a public trust, and cannot be a matter of bargain and sale. It requires good faith and duty. Cansler v. Penland, 125 N.C. 578, 34 S.E. 683 (1899), rehearing dismissed, 126 N.C. 793, 36 S.E. 285 (1900).

Certain Agreements to Secure Appointment Void. - Not only an agreement by A to pay to B, a public officer, an amount equal to the emoluments of the unexpired term of his office in consideration of his resignation and his influence to secure the appointment of A to the office is void, but likewise an agreement to compensate anyone for or to pay the expenses of anyone in attempting to secure such appointment. Basket v. Moss, 115 N.C. 448, 20 S.E. 733 (1894).

A sheriff may employ a deputy to assist him, but he cannot delegate his authority to another. Cansler v. Penland, 125 N.C. 578, 34 S.E. 683 (1899), rehearing dismissed, 126 N.C. 793, 36 S.E. 285 (1900).

Deputy Sheriffs. - In light of the distinct demarcation between county government and the office of the sheriff, a sheriff's office is not a program or department of a county, and a deputy sheriff or employee of a sheriff's office is not a county employee. Young v. Bailey, 368 N.C. 665, 781 S.E.2d 277 (2016).

Termination of Deputy Sheriff. - Deputy sheriff's free speech rights were not violated because mutual confidence and loyalty between a sheriff and a deputy were crucial in accomplishing the sheriff's policies and duties; thus, the deputy could be lawfully terminated for political reasons under the exception to prohibited political terminations; by standing in the elected sheriff's shoes, a deputy sheriff fills a role in which loyalty to the elected sheriff is necessary to ensure that the sheriff's policies are carried out. Young v. Bailey, 368 N.C. 665, 781 S.E.2d 277 (2016).

Assistant jailer is created by statute for purposes of public official immunity since: (1) the sheriff, a position created by N.C. Const., Art. VII, § 2, is permitted by G.S. 162-22 and G.S. 162-24 to employ others, including assistant jailers, to assist him in performing his official duties to operate the jail; (2) assistant jailers are charged with the care, custody and maintenance of prisoners; (3) detention officers such as jailers have been described in G.S. 17E-2 as a person, who through the special trust and confidence of the sheriff, has been appointed as a detention officer by the sheriff; and (4) under G.S. 153-224(a), the jail cannot operate without custodial personnel to supervise and maintain the safe custody and control of the prisoners. Baker v. Smith, 224 N.C. App. 423, 737 S.E.2d 144 (2012).

Cited in Harter v. Vernon, 953 F. Supp. 685 (M.D.N.C. 1996), aff'd, 101 F.3d 334 (4th Cir. 1996), cert. denied, 521 U.S. 1120, 117 S. Ct. 2511, 138 L. Ed. 2d 1014 (1997); Jenkins v. Medford, 119 F.3d 1156 (4th Cir. 1997), cert. denied, 522 U.S. 1090, 118 S. Ct. 881, 139 L. Ed. 2d 869 (1998); Knight v. Vernon, 23 F. Supp. 2d 634 (M.D.N.C. 1998); Leonard v. Bell, 254 N.C. App. 694, 803 S.E.2d 445 (2017).

Opinions of Attorney General

Criminal Intake Center. - County manager must place Criminal Intake Center, a facility for the reception of persons charged with crime which includes detention cells for at least 48 persons, used to detain certain prisoners overnight and to house disruptive persons, drunks, etc., under the care and custody of the sheriff. See opinion of Attorney General to Honorable Frank W. Snepp, Jr., Senior Resident Superior Court Judge, Mecklenburg County, 58 N.C.A.G. 30 (1988).

Any depository for criminal process which has been legally issued and directed to sheriff must remain within control and supervision of the sheriff because it is the sheriff who is responsible, by law, for its proper and timely service. See opinion of Attorney General to Honorable Frank W. Snepp, Jr., Senior Resident Superior Court Judge, Mecklenburg County, 58 N.C.A.G. 30 (1988).

§ 162-25. Obligations taken by sheriff payable to himself.

The sheriff or his deputy shall take no obligation of or from any person in his custody for or concerning any matter or thing relating to his office otherwise payable than to himself as sheriff and dischargeable upon the prisoner's appearance and rendering himself at the day and place required in the writ (whereupon he was or shall be taken or arrested), and his sureties discharging themselves therefrom as special bail of such prisoner or such person keeping within the limits and rules of any prison; and every other obligation taken by any sheriff in any other manner or form, by color of his office, shall be void, except in any special case and other obligation shall be, by law, particularly and expressly directed; and no sheriff shall demand, exact, take or receive any greater fee or reward whatsoever, nor shall have any allowance, reward or satisfaction from the public, for any service by him done, other than such sum as the court shall allow for ex officio services and the allowance given and provided by law.

History

(1777, c. 118, s. 8, P.R.; R.C., c. 105, s. 19; Code, s. 2082; Rev., s. 2829; C.S., s. 3947.)

§ 162-26. Sheriff may establish volunteer school safety resource officer program.

  1. The sheriff may establish a volunteer school safety resource officer program to provide nonsalaried special deputies to serve as school safety resource officers in public schools. To be a volunteer in the program, a person must have prior experience as either (i) a sworn law enforcement officer or (ii) a military police officer with a minimum of two years' service. If a person with experience as a military police officer is no longer in the armed services, the person must also have an honorable discharge. A program volunteer must receive training on research into the social and cognitive development of elementary, middle, and high school children and must also meet the selection standards and any additional criteria established by the sheriff.
  2. Each volunteer shall report to the sheriff and shall work under the direction and supervision of the sheriff or the sheriff's designee when carrying out the volunteer's duties as a school safety resource officer. No volunteer may be assigned to a school as a school safety resource officer until the volunteer has updated or renewed the volunteer's law enforcement training and has been certified by the North Carolina Sheriff's Education and Training Standards Commission as meeting the educational and firearms proficiency standards required of persons serving as special deputy sheriffs. A volunteer is not required to meet the physical standards required by the North Carolina Sheriff's Education and Training Standards Commission but must have a standard medical exam to ensure the volunteer is in good health. A person selected by the sheriff to serve as a volunteer under this section shall have the power of arrest while performing official duties as a volunteer school safety resource officer.
  3. The sheriff may enter into an agreement with the local board of education to provide volunteer school safety resource officers who meet both the criteria established by this section and the selection and training requirements set by the sheriff of the county for the schools. The sheriff shall be responsible for the assignment of any volunteer school safety resource officer assigned to a public school and for the supervision of the officer.
  4. There shall be no liability on the part of and no cause of action shall arise against a volunteer school safety resource officer, the Sheriff or employees of the sheriff supervising a volunteer school safety officer, or the public school system or its employees for any good-faith action taken by them in the performance of their duties with regard to the volunteer school safety resource officer program established pursuant to this section.

History

(2013-360, s. 8.45(e).)

§§ 162-27 through 162-30: Reserved for future codification purposes.

ARTICLE 4. County Prisoners.

Sec.

§ 162-31: Repealed by Session Laws 1975, c. 166, s. 26.

§ 162-32. Bond of prisoner committed on capias in civil action.

Every bond given by any person committed in arrest and bail, or in custody after final judgment, shall be assigned by the sheriff to the party at whose instance such person was committed to jail, and shall be returned to the office of the clerk of the court where the judgment was rendered, and shall have the force of a judgment. If any person who obtains the rules of any prison, as aforesaid, escapes out of the same before he has paid the debt or damages and costs according to the condition of his bond, the court where the bond is filed, upon motion of the assignee thereof, shall award execution against such person and his sureties for the debt or damages and costs, with interest from the time of escape till payment, and no person committed to jail on such execution shall be allowed the rules of prison: Provided, the obligors have ten days' previous notice of such motion, in writing; but they shall not be admitted to deny the making of the bond in their answer, unless by affidavit they prove the truth of the plea.

History

(1759, c. 65, ss. 2, 3, P.R.; R.C., c. 87, s. 14; Code, s. 3469; Rev., s. 1341; C.S., s. 1345; 1973, c. 822, s. 3.)

Editor's Note. - This Article was formerly Article 15, G.S. 153-177 through 153-198, of Chapter 153. It was reenacted and transferred to its present location by Session Laws 1973, c. 822, s. 3.

CASE NOTES

Cited in State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983).


§ 162-33. Prisoner may furnish necessaries.

With the sheriff's approval, prisoners shall be allowed to purchase and procure such necessaries, in addition to the diet furnished by the jailer, as they may think proper.

History

(1795, c. 433, s. 6, P.R.; R.C., c. 87, s. 8; Code, s. 3463; Rev., s. 1344; C.S., s. 1348; 1973, c. 822, s. 3; 2001-487, s. 95.)

§ 162-34. United States prisoners.

When a prisoner is delivered to the keeper of the county jail by the authority of the United States, such keeper shall receive and commit such prisoner if the jail has adequate and available housing space. The keeper of the county jail shall not be subject to any pains or penalties for refusal to receive and commit a federal prisoner. The United States shall reimburse the county for the incarceration of any federal prisoner at such rate as may be agreed upon between the county and the United States.

History

(1790, c. 322, ss. 1, 2, P.R.; R.C., c. 87, s. 1; Code, s. 3456; Rev., s. 1342; C.S., s. 1349; 1973, c. 822, s. 3; 1983, c. 219.)

§ 162-35. Arrest of escaped persons from penal institutions.

Upon information received from the superintendent of any correctional or any penal institution, established by the laws of the State, that any person confined in such institution or assigned thereto by juvenile or other court under authority of law, has escaped therefrom and is still at large, it shall be the duty of sheriffs of the respective counties of the State, and of any peace officer in whose jurisdiction such person may be found, to take into his custody such escaped person, if to be found in his county, and to cause his return to the custody of the proper officer of the institution from which he has escaped.

History

(1933, c. 105, s. 1; 1973, c. 822, s. 3.)

§ 162-36. Transfer of prisoners to succeeding sheriff.

The delivery of prisoners, by indenture between the late and present sheriff, or the entering on record in court the names of the several prisoners, and the causes of their commitment, delivered over to the present sheriff, shall be sufficient to discharge the late sheriff from all liability for any escape that shall happen.

History

(1777, c. 118, s. 12, P.R.; R.C., c. 87, s. 15; Code, s. 3470; Rev., s. 1348; C.S., s. 1352; 1973, c. 822, s. 3.)

§ 162-37: Repealed by Session Laws 1983, c. 670, s. 16.

§ 162-38. Where jail unfit or insecure, courts may commit to jail of adjoining county.

Whenever there is an unfit or insecure jail in any county, the judicial officers of such county may commit any persons brought before them, whether in a criminal or civil proceeding, to the jail of any adjoining county, for the same causes and under the like regulations that they might have ordered commitments to the usual jail; and the sheriffs and other officers of such county in which there is an unfit or insecure jail, and the sheriffs or keepers of the jails of the adjoining counties, shall obey any order of commitment so made.

History

(1835, c. 2, s. 2; R.C., c. 87, s. 3; Code, s. 3458; Rev., s. 1350; C.S., s. 1354; 1973, c. 57, s. 2; c. 822, s. 3; 1983, c. 670, s. 17.)

Local Modification. - Elizabeth City: 1973, c. 487.

§ 162-39. Transfer of prisoners when necessary for safety and security; application of section to municipalities.

  1. Whenever necessary for the safety of a prisoner held in any county jail or to avoid a breach of the peace in any county or whenever prisoners are arrested in such numbers that county jail facilities are insufficient and inadequate for the housing of such prisoners, the resident judge of the superior court or any judge holding superior court in the district or any district court judge may order the prisoner transferred to a fit and secure jail in some other county where the prisoner shall be held for such length of time as the judge may direct.
  2. Whenever necessary to avoid a security risk in any county jail, or whenever prisoners are arrested in such numbers that county jail facilities are insufficient and inadequate for the housing of such prisoners, the resident judge of the superior court or any judge holding superior court in the district or any district court judge may order the prisoner transferred to a unit of the State prison system designated by the Secretary of Public Safety or his authorized representative. For purposes of this subsection, a prisoner poses a security risk if the prisoner:
    1. Poses a serious escape risk;
    2. Exhibits violently aggressive behavior that cannot be contained and warrants a higher level of supervision;
    3. Needs to be protected from other inmates, and the county jail facility cannot provide such protection;
    4. Is a female or a person 18 years of age or younger, and the county jail facility does not have adequate housing for such prisoners;
    5. Is in custody at a time when a fire or other catastrophic event has caused the county jail facility to cease or curtail operations; or
    6. Otherwise poses an imminent danger to the staff of the county jail facility or to other prisoners in the facility.
  3. The Department of Public Safety, Health Services Section, shall maintain records of prisoners transferred to a unit of the State prison system pursuant to subsection (b) of this section. The records shall utilize unique identifiers for each transferred prisoner and shall include all of the following information:
    1. The date the transfer order was received.
    2. The statutory basis upon which the order was granted.
    3. The date the prisoner was transferred to State custody.
    4. The State prison facility where the prisoner was transferred.
    5. The county where the prisoner was removed.
    6. The dates the prisoner received health services from the Department.
    7. A list of health services provided to the prisoner and the corresponding charges.
    8. The date the Department determined that the prisoner no longer needs health services to be provided by the State prison system.
    9. The date and method used by the Department to notify the county that the prisoner should be transferred back to the custody of the county.
    10. The date that the prisoner is returned to the custody of the county.
  4. The sheriff of the county from which the prisoner is removed shall be responsible for conveying the prisoner to the jail or prison unit where the prisoner is to be held, and for returning the prisoner to the common jail of the county from which the prisoner was transferred. The return shall be made at the expiration of the time designated in the court order directing the transfer unless the judge, by appropriate order, directs otherwise. The sheriff or keeper of the jail of the county designated in the court order, or the officer in charge of the prison unit designated by the Secretary of Public Safety, shall receive and release custody of the prisoner in accordance with the terms of the court order. If a prisoner is transferred to a unit of the State prison system, the county from which the prisoner is transferred shall pay the Division of Adult Correction and Juvenile Justice of the Department of Public Safety for maintaining the prisoner for the time designated by the court at the per day, per inmate rate at which the Division of Adult Correction and Juvenile Justice of the Department of Public Safety pays a local jail for maintaining a prisoner. The county shall also pay the Division of Adult Correction and Juvenile Justice of the Department of Public Safety for the costs of medical care incurred while the prisoner was in the custody of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety, defined as follows:
    1. Medical expenses incurred as a result of providing health care to a prisoner as an inpatient (hospitalized).
    2. Other medical expenses when the total cost exceeds thirty-five dollars ($35.00) per occurrence or illness as a result of providing health care to a prisoner as an outpatient (nonhospitalized).
    3. Cost of replacement of eyeglasses and dental prosthetic devices if those eyeglasses or devices are broken while the prisoner is incarcerated, provided the prisoner was using the eyeglasses or devices at the time of his commitment and then only if prior written consent of the county is obtained by the Division.
    4. Transportation and custody costs associated with the transfer of prisoners receiving health care outside of the prison facility. The county shall reimburse the State for services provided to the prisoner at the same mileage reimbursement rate and hourly custody rate that are reimbursed pursuant to the Statewide Misdemeanant Confinement Program.
    5. Cost of sick call encounters at the rate charged to State prison inmates.
  5. If the prisoner is transferred to a jail in some other county, the county from which the prisoner is transferred shall pay to the county receiving the prisoner in its jail the actual cost of maintaining the prisoner for the time designated by the court. Counties are authorized to enter into contractual agreements with other counties to provide jail facilities to which prisoners may be transferred as deemed necessary under this section.
  6. Whenever prisoners are arrested in such numbers that county jail facilities are insufficient and inadequate for the safekeeping of such prisoners, the resident judge of the superior court or any superior or district court judge holding court in the district may order the prisoners transferred to a unit of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety designated by the Secretary of Public Safety or the Secretary's authorized representative, where the prisoners may be held for such length of time as the judge may direct, such detention to be in cells separate from those used for imprisonment of persons already convicted of crimes, except when admission to an inpatient prison medical or mental health unit is required to provide services deemed necessary by a prison health care clinician. The sheriff of the county from which the prisoners are removed shall be responsible for conveying the prisoners to the prison unit or units where they are to be held, and for returning them to the common jail of the county from which they were transferred. However, if due to the number of prisoners to be conveyed the sheriff is unable to provide adequate transportation, the sheriff may request the assistance of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety, and the Division of Adult Correction and Juvenile Justice of the Department of Public Safety is hereby authorized and directed to cooperate with the sheriff and provide whatever assistance is available, both in vehicles and manpower, to accomplish the conveying of the prisoners to and from the county to the designated prison unit or units. The officer in charge of the prison unit designated by the Secretary of Public Safety or the Secretary's authorized representative shall receive and release the custody of the prisoners in accordance with the terms of the court order. The county from which the prisoners are transferred shall pay to the Division of Adult Correction and Juvenile Justice of the Department of Public Safety the actual cost of transporting the prisoners and the cost of maintaining the prisoners at the per day, per inmate rate at which the Division of Adult Correction and Juvenile Justice of the Department of Public Safety pays a local jail for maintaining a prisoner, provided, however, that a county is not required to reimburse the State for transporting or maintaining a prisoner who was a resident of another state or county at the time the prisoner was arrested. However, if the county commissioners shall certify to the Governor that the county is unable to pay the bill submitted by the Division of Adult Correction and Juvenile Justice of the Department of Public Safety to the county for the services rendered, either in whole or in part, the Governor may recommend to the Council of State that the State of North Carolina assume and pay, in whole or in part, the obligation of the county to the Division of Adult Correction and Juvenile Justice of the Department of Public Safety, and upon approval of the Council of State the amount so approved shall be paid from the Contingency and Emergency Fund to the Division of Adult Correction and Juvenile Justice of the Department of Public Safety.
  7. When, due to an emergency, it is not feasible to obtain from a judge of the superior or district court a prior order of transfer, the sheriff of the county and the Division of Adult Correction and Juvenile Justice of the Department of Public Safety may exercise the authority hereinafter conferred; provided, however, that the sheriff shall, as soon as possible after the emergency, obtain an order from the judge authorizing the prisoners to be held in the designated place of confinement for such period as the judge may direct. All provisions of this section shall be applicable to municipalities whenever prisoners are arrested in such numbers that the municipal jail facilities and the county jail facilities are insufficient and inadequate for the safekeeping of the prisoners. The chief of police is hereby authorized to exercise the authority herein conferred upon the sheriff, and the municipality shall be liable for the cost of transporting and maintaining the prisoners to the same extent as a county would be unless action is taken by the Governor and Council of State as herein provided for counties which are unable to pay such costs.
  8. Whenever a prisoner held in a county jail requires medical or mental health treatment that the county decides can best be provided by the Division of Adult Correction and Juvenile Justice of the Department of Public Safety, the resident judge of the superior court or any judge holding superior court in the district or any district court judge may order the prisoner transferred to a unit of the State prison system designated by the Secretary of Public Safety or the Secretary's authorized representative for an initial period not to exceed 30 days. The sheriff of the county from which the prisoner is removed shall be responsible for conveying the prisoner to the prison unit where the prisoner is to be held, and for returning the prisoner to the jail of the county from which the prisoner was transferred. The officer in charge of the prison unit designated by the Secretary of Public Safety shall receive custody of the prisoner in accordance with the terms of the order. Prior to the conclusion of the 30-day period, the Division of Adult Correction and Juvenile Justice shall conduct an assessment of treatment and venue needs. The assessment shall be conducted by the attending medical or mental health professional and shall assess the medical and mental health needs of the prisoner and make a recommendation on whether the prisoner should remain in the custody of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety or if the prisoner should be returned to the custody of the county. To extend the order beyond the initial 30-day period, the sheriff shall provide the Division of Adult Correction and Juvenile Justice assessment and any other relevant information to the resident judge of the superior court or any judge holding superior court in the district or any district court judge who shall determine whether to extend the transfer of the prisoner to a unit of the State prison system beyond the initial 30-day period. If the judge determines that the prisoner should remain in the custody of the Division of Adult Correction and Juvenile Justice, the judge shall renew the order and include a date certain for review by the court. Prior to the date of review, the Division shall conduct a reassessment of treatment and venue needs and the sheriff shall provide the reassessment and any other relevant information to the court, as described in this subsection. If the judge determines that the prisoner should not remain in the custody of the Division of Adult Correction and Juvenile Justice, the officer in charge of the prison unit designated by the Secretary of Public Safety shall release custody of the prisoner in accordance with the court order and the instructions of the attending medical or mental health professional. The county from which the prisoner is transferred shall pay the Division of Adult Correction and Juvenile Justice of the Department of Public Safety for maintaining the prisoner for the period of treatment at the per day, per inmate rate at which the Division of Adult Correction and Juvenile Justice of the Department of Public Safety pays a local jail for maintaining a prisoner, and for extraordinary medical expenses as set forth in subsection (c) of this section.
  9. The number of county prisoners incarcerated in the State prison system pursuant to safekeeping orders from the various counties pursuant to subsection (b) of this section or for medical or mental health treatment pursuant to subsection (d) of this section may not exceed 200 at any given time unless authorized by the Secretary of Public Safety. The Secretary may refuse to accept any safekeeper and may return any safekeeper transferred under a safekeeping order when this capacity limit is reached. The Secretary shall not refuse to accept a safekeeper because a county has failed to pay the Department of Public Safety for services rendered pursuant to this section.
  10. If, after 10 days of receiving notification and request for transfer from the Department of Public Safety pursuant to G.S. 148-19.3(a), the sheriff fails to assume custody of the county prisoner from the State prison facility to which the prisoner was assigned, then, in addition to the actual cost of transporting the prisoner and the cost of maintaining the prisoner at the per day, per inmate rate at which the Division of Adult Correction and Juvenile Justice of the Department of Public Safety pays a local jail for maintaining a prisoner, the county shall be liable to the State for an additional per day, per inmate rate not to exceed twenty dollars ($20.00) for each day the sheriff fails to assume custody of the prisoner, unless the sheriff has obtained an extension of the order because the inmate cannot be safely housed in the local jail. The section chief of the Health Services Section may waive up to 10 days of the additional per day rate if the sheriff provides documentation of extenuating circumstances.

History

(1957, c. 1265; 1967, c. 996, ss. 13, 15; 1969, cc. 462, 1130; 1973, c. 822, s. 3; c. 1262, s. 10; 1983, c. 165, ss. 1-4; 1985 (Reg. Sess., 1986), c. 1014, s. 198(a)-(c); 1989, c. 1, s. 7; 1991, c. 535, s. 1; 1991 (Reg. Sess., 1992), c. 983, s. 1; 2002-126, s. 17.1; 2011-145, s. 19.1(h), (i); 2012-83, s. 60; 2017-186, s. 2(kkkkkkkkk); 2019-171, s. 1.)

Editor's Note. - Session Laws 2013-360, s. 16C.5, provides: "The Department of Public Safety shall report by October 1 of each year to the Chairs of the House of Representatives Appropriations Subcommittee on Justice and Public Safety, the Chairs of the Senate Appropriations Committee on Justice and Public Safety, and the Chairs of the Joint Legislative Oversight Committee on Justice and Public Safety on county prisoners housed in the State prison system pursuant to safekeeping orders under G.S. 162-39(b) to avoid security risks in county jails or due to insufficient or inadequate county facilities. The report shall include:

"(1) The number of safekeepers currently housed by the Department.

"(2) A list of the facilities where safekeepers are housed and the population of safekeepers by facility.

"(3) The average length of stay by a safekeeper in one of those facilities.

"(4) The amount paid by counties for housing and extraordinary medical care of safekeepers.

"(5) A list of the counties in arrears for safekeeper payments owed to the Department at the end of the fiscal year."

Session Laws 2013-360, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2013.'"

Session Laws 2013-360, s. 38.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2013-2015 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2013-2015 fiscal biennium."

Session Laws 2013-360, s. 38.5, is a severability clause.

Session Laws 2019-171, s. 3 made the amendments to this section by Session Laws 2019-171, s. 1, effective October 1, 2019, and applicable to all prisoners transferred on or after that date.

Effect of Amendments. - Session Laws 2011-145, s. 19.1(h) and (i), effective January 1, 2012, substituted "Division of Adult Correction of the Department of Public Safety" for "Department of Correction" and "Secretary of Public Safety" for "Secretary of Correction" throughout the section.

Session Laws 2012-83, s. 60, effective June 26, 2012, deleted "State" preceding "Division of Adult Correction" twice in the second paragraph of subsection (c).

Session Laws 2017-186, s. 2(kkkkkkkkk), effective December 1, 2017, substituted "Division of Adult Correction and Juvenile Justice" for "Division of Adult Correction" throughout.

Session Laws 2019-171, s. 1, added subsections (b1) and (f); rewrote sections (c) and (d); designated three paragraphs from former section (c) as subsections (c1), (c2), and (c3) and rewrote them; and added the last sentence of subsection (e). For effective date and applicability, see Editor's note.

CASE NOTES

Failure to Furnish Nonelective Medical Care to Safekeepers Upheld. - Failure to furnish nonessential, elective medical care to so-called "safekeepers," prisoners whose terms are not yet fixed by reason of appeals or because they have not yet been tried and who are considered still to be county prisoners although they may be housed in Department prisons, is both reasonable and rational and free from constitutional infirmity. Kersh v. Bounds, 501 F.2d 585 (4th Cir. 1974), cert. denied, 420 U.S. 925, 95 S. Ct. 1120, 43 L. Ed. 2d 394 (1975).

Treatment of Defendant Whose Conviction Is Reversed on Appeal. - Where the Court of Appeals reversed defendant's conviction, and where after receiving a copy of the Court of Appeals' certified judgment the Department of Correction released defendant to the custody of the county jail, but on the same day, the county jailer obtained a safekeeping order transferring defendant back to the custody of the Department of Correction, the Secretary of the Department of Correction was not responsible for failing to implement a policy directing Department of Correction employees as to the proper manner with which to deal with prisoners whose convictions had been overturned on appeal; the Department personnel were not on notice of the circumstances leading to the issuance of the safekeeping order and had no reason to question its sufficiency, and given the lack of discretion allowed to the Department and State law, there was no reasonable way that the Secretary could have detailed a policy that would have avoided defendant's misfortunes. Allen v. Lowder, 875 F.2d 82 (4th Cir. 1989).

§ 162-40. When jail destroyed, transfer of prisoners provided for.

When the jail of any county is destroyed by fire or other accident, any judicial officer of such county may cause all prisoners then confined therein to be brought before him. Upon the production of the process under which any prisoner was confined, such judicial officer shall order his commitment to the jail of any adjacent county. The sheriff or other officer of the county deputized for that purpose shall obey the order; and the sheriff or keeper of the common jail of such adjacent county shall receive such prisoners consistent with those provisions of G.S. 162-38.

History

(1835, c. 2, s. 1; R.C., c. 87, s. 2; Code, s. 3457; Rev., s. 1351; C.S., s. 1355; 1973, c. 57, s. 3; c. 822, s. 3; 1983, c. 670, s. 18.)

§ 162-40.1. Reimbursement for transfer of prisoners.

The county receiving prisoners pursuant to G.S. 162-38, 162-39 and 162-40 shall be reimbursed at the usual jail fee rate for each 24 hours of confinement or part thereof by the county from which the prisoner is transferred.

History

(1983, c. 670, s. 19.)

§ 162-41: Repealed by Session Laws 1977, c. 711, s. 33.

Editor's Note. - Session Laws 1977, c. 711, which repealed this section, in s. 34, provided: "All statutes which refer to sections repealed or amended by the act shall be deemed, insofar as possible, to refer to those provisions of this act which accomplish the same or an equivalent purpose."

Session Laws 1977, c. 711, s. 35 provided: "None of the provisions of this act providing for the repeal of certain sections of the General Statutes shall constitute a reenactment of the common law."

Session Laws 1977, c. 711, s. 39, as amended by Session Laws 1977, 2nd Sess., c. 1147, s. 32, effective July 1, 1978, provided: "This act shall become effective July 1, 1978, and applies to all matters addressed by its provisions without regard to when a defendant's guilt was established or when judgment was entered against him, except that the provisions of this act regarding parole shall not apply to persons sentenced before July 1, 1978."

§§ 162-42 through 162-44: Repealed by Session Laws 1983, c. 670, s. 20.

§ 162-45: Repealed by Session Laws 1977, c. 711, s. 33.

Editor's Note. - For the provisions of Session Laws 1977, c. 711, ss. 34, 35 and 39, as amended by Session Laws 1977, 2nd Sess., c. 1147, s. 32, see the Editor's Note under the repeal line to G.S. 162-41.

§ 162-46: Repealed by Session Laws 1979, c. 760, s. 4.

Editor's Note. - Session Laws 1979, c. 760, which repealed this section, in s. 6, as amended by Session Laws 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; and 1981, c. 179, s. 14 provided: "This act shall become effective on July 1, 1981, and shall apply only to offenses committed on or after that date, unless specific language of the act indicates otherwise."

§ 162-47: Repealed by Session Laws 1977, c. 711, s. 33.

Editor's Note. - For the provisions of Session Laws 1977, c. 711, ss. 34, 35 and 39, as amended by Session Laws 1977, 2nd Sess., c. 1147, s. 32, see the Editor's Note under the repeal line to G.S. 162-41.

§ 162-48: Repealed by Session Laws 1983, c. 670, s. 20.

§ 162-49: Repealed by Session Laws 1977, c. 711, s. 33.

Editor's Note. - For the provisions of Session Laws 1977, c. 711, ss. 34, 35 and 39, as amended by Session Laws 1977, 2nd Sess., c. 1147, s. 32, see the Editor's Note under the repeal line to G.S. 162-41.

§ 162-50. Penalties.

Upon a finding that the sheriff, personally or through his lawful deputies, has willfully failed or neglected to perform any duty imposed by this Chapter, or has made any false return, he shall be subject to damages of not more than five hundred dollars ($500.00), and such damages recovered shall be paid to the person aggrieved. Nothing in this section bars an independent action for damages by the person aggrieved.

History

(1983, c. 670, s. 21.)

Opinions of Attorney General

Any depository for criminal process which has been legally issued and directed to sheriff must remain within control and supervision of sheriff, because it is the sheriff who is responsible, by law, for its proper and timely service. See opinion of Attorney General to Honorable Frank W. Snepp, Jr., Senior Resident Superior Court Judge, Mecklenburg County, 58 N.C.A.G. 30 (1988).

§§ 162-51 through 162-54: Reserved for future codification purposes.

§ 162-55. Injury to prisoner by jailer.

If the keeper of a jail shall do, or cause to be done, any wrong or injury to the prisoners committed to his custody, contrary to law, he shall not only pay treble damages to the person injured, but shall be guilty of a Class 1 misdemeanor.

History

(1795, c. 433, s. 6, P.R.; R.C., c. 87, s. 8; Code, s. 3463; Rev., s. 3661; C.S., s. 4407; 1983, c. 631, s. 1; 1993, c. 539, s. 1098; 1994, Ex. Sess., c. 24, s. 14(c).)

Editor's Note. - This section was formerly G.S. 14-260. It was recodified by Session Laws 1983, c. 631, s. 1, as G.S. 162-55, effective June 28, 1983.

Legal Periodicals. - For note, "North Carolina County Jail Inmates' Right of Access to Courts," see 66 N.C.L. Rev. 583 (1988).

CASE NOTES

Bailiff Is "Keeper of a Jail." - Person who works as a courtroom bailiff falls within the statute's definition of a "keeper of a jail" where the person's duties include the care, custody, and maintenance of prisoners; thus, it was proper to deny defendant's motion to dismiss the charge of injury to prisoner by jailer because defendant's duties as a courtroom bailiff were such that defendant could be considered the "keeper of a jail." State v. Shepherd, 156 N.C. App. 603, 577 S.E.2d 341 (2003).

Assistant Jailer Entitled to Public Official Immunity. - Defining assistant jailers as public officials entitled to immunity does not undermine the extensive statutory and regulatory framework surrounding the operation of the confinement facilities in North Carolina, including the waiver of immunity through the sheriff's bond and G.S. 58-76-5, which provides for civil actions on an official bond, nor does it lead to unaccountable jailers, given the extensive regulations, the ability of injured parties to sue on the sheriff's bond, the potential criminal penalties for jailers who injure those in their care under G.S. 162-55, and the internal discipline for those jailers who violate policies and procedures. Baker v. Smith, 224 N.C. App. 423, 737 S.E.2d 144 (2012).

Criminal Negligence Required for Treble Damages. - A jailer's negligent failure to protect a prisoner from assaults by other inmates was not criminal conduct, absent any intent by jailer that the prisoner be harmed, and because only those acts amounting to crimes yield treble civil damages, prisoner would not be entitled to treble damages for such an assault. Letchworth v. Gay, 874 F. Supp. 107 (E.D.N.C. 1995).

Evidence Sufficient for Jury. - Evidence that plaintiff's thumb had inadvertently been placed against the door jamb when deputy sheriff started to close door of cell, and that when plaintiff pushed against the door to release his thumb the deputy pushed the door shut with his shoulder, thereby cutting off plaintiff's thumb, was sufficient to be submitted to the jury on the issue of the deputy's negligent injury to plaintiff. Davis v. Moore, 215 N.C. 449, 2 S.E.2d 366 (1939), overruled on other grounds in Dunn v. Swanson, 217 N.C. 279, 7 S.E.2d 563 (1940), decided under former G.S. 14-260.

Dismissal of a claim was not warranted where a plaintiff sufficiently alleged that defendants were deliberately indifferent a pretrial detainee's rights to receive adequate medical care following a head injury incurred while in jail, which resulted in the pretrial detainee suffering severe and permanent brain damage; plaintiff alleged that defendants knew or should have known of the explicit instructions not to permit the pretrial detainee to go to sleep, and an order from the emergency physician to transport the pretrial detainee to the hospital. Layman v. Alexander, 294 F. Supp. 2d 784 (W.D.N.C. 2003).

Summary judgment was denied to defendant sheriff and officers, where plaintiff suffered a severe brain injury while in their custody, and there was sufficient evidence of deliberate and reckless indifference to his medical needs under State and federal law. Layman v. Alexander, 343 F. Supp. 2d 483 (W.D.N.C. 2004).

Cited in Knight v. Vernon, 23 F. Supp. 2d 634 (M.D.N.C. 1998).

§ 162-56. Place of confinement.

Persons committed to the custody of a sheriff shall be confined in the facilities designated by law for such confinement, and shall not be confined in any other place. Nothing herein shall be construed to prohibit or limit the authority of a sheriff to house prisoners committed to his custody in quarters, approved by the Department of Health and Human Services, other than the county jail.

History

(1795, c. 433, s. 4; R.C., c. 87, s. 16; Code, s. 3471; Rev., s. 3660; C.S., s. 4408; 1983, c. 631, s. 2; 1997-443, s. 11A.118(a).)

Editor's Note. - This section was formerly G.S. 14-261. It was rewritten and recodified as G.S. 162-56 by Session Laws 1983, c. 631, s. 2, effective June 28, 1983.

Opinions of Attorney General

Criminal Intake Center. - County manager must place Criminal Intake Center, a facility for the reception of persons charged with crime, which includes detention cells for at least 48 persons, and is used to detain certain prisoners overnight and to house disruptive persons, drunks, etc., under the care and custody of the sheriff. See opinion of Attorney General to Honorable Frank W. Snepp, Jr., Senior Resident Superior Court Judge, Mecklenburg County, 58 N.C.A.G. 30 (1988).

§ 162-57. Record to be kept; items of record.

The superintendent or other person having charge of prisoners shall keep a record showing, the name, age, date of sentence, length of sentence, crime for which convicted, home address, next of kin, and the conduct of each prisoner received.

History

(1927, c. 178, s. 2; 1983, c. 631, s. 3.)

Editor's Note. - This section was formerly G.S. 14-264. It was recodified by Session Laws 1983, c. 631, s. 3, as G.S. 162-57, effective June 28, 1983.

§ 162-58. Counties may work prisoners.

The board of commissioners of the several counties may enact by resolution all necessary rules and regulations for work on projects to benefit units of State or local government by persons convicted of misdemeanors or felonies and imprisoned in the local confinement facilities or satellite jail/work release units of their respective counties. The sheriff shall approve rules and regulations enacted by the board. Prisoners working under this section shall be supervised by county employees or by the sheriff. The rules enacted by the board of county commissioners and approved by the sheriff shall specify a procedure for ensuring that county employees supervising prisoners pursuant to this section be provided with notice that the persons placed under their supervision are inmates from a local confinement facility or a satellite jail/work release unit.

History

(1991 (Reg. Sess., 1992), c. 841, s. 1; 2002-159, s. 54.)

CASE NOTES

Suspension of Workers' Compensation Benefits During Incarceration. - Imprisonment of a person already receiving worker's compensation disability payments cuts off the employer's duty to make payments during the period of confinement. Parker v. Union Camp Corp., 107 N.C. App. 505, 422 S.E.2d 585 (1992).

Cited in Harris v. Thompson Contrs., Inc., 148 N.C. App. 472, 558 S.E.2d 894 (2002), aff'd, 356 N.C. 664, 576 S.E.2d 323 (2003).


§ 162-59. Person having custody to approve prisoners for work.

No prisoner shall perform work pursuant to G.S. 162-58 unless the prisoner has been approved for the work by the person having custody of the prisoner. The decision to approve a prisoner for work shall be based on the prisoner's history of violence, if any, past criminal convictions, and current sentence. For purposes of this section, the person having custody of the prisoner is the sheriff, except that when the prisoner is confined in a district confinement facility the person having custody of the prisoner is the jail administrator. The person having custody of the prisoner may use his discretion to revoke his approval at any time and to return the prisoner to the local confinement facility or satellite jail/work release unit. Neither the person having custody of the prisoner nor any jailer may be held liable for the actions of any prisoner, including those actions committed during and after the escape of a prisoner, while the prisoner is outside their supervision pursuant to this section.

History

(1991 (Reg. Sess., 1992), c. 841, s. 1.)

§ 162-59.1. Person having custody to approve prisoners for participation in education and other programs.

The person having custody of a prisoner convicted of a misdemeanor offense may approve that prisoner's participation in an adult high school equivalency diploma program or in any other education, rehabilitation, or training program. The person having custody of the prisoner may revoke this approval at any time. For purposes of this section, the person having custody of the prisoner is the sheriff, except that when the prisoner is confined in a district confinement facility the person having custody of the prisoner is the jail administrator.

History

(2001-200, s. 1; 2014-115, s. 28(h).)

Effect of Amendments. - Session Laws 2014-115, s. 28(h), effective August 11, 2014, substituted "an adult high school equivalency diploma program" for "a general education development diploma program (GED program)" in the first sentence.

§ 162-60. Reduction in sentence allowed for work, education, and other programs.

  1. A prisoner who has faithfully performed the duties assigned to the prisoner under G.S. 162-58 is entitled to a reduction in the prisoner's sentence of four days for each 30 days of work performed.
  2. A prisoner who is convicted of a misdemeanor offense and housed in a local confinement facility or a person under the age of 18 convicted of a misdemeanor offense and housed in a detention facility approved by the Juvenile Justice Section of the Division of Adult Correction and Juvenile Justice who faithfully participates in an adult high school equivalency diploma program or in any other education, rehabilitation, or training program is entitled to a reduction in the prisoner's sentence of four days for each 30 days of classes attended, up to the maximum credit allowed under G.S. 15A-1340.20(d).
  3. The person having custody of the prisoner, as defined in G.S. 162-59, is the sole judge as to whether the prisoner has faithfully performed the assigned duties under G.S. 162-58 or has faithfully participated in an adult high school equivalency diploma program or other education, rehabilitation, or training program under subsection (b) of this section. A prisoner who escapes or attempts to escape while performing work pursuant to G.S. 162-58 or while participating in an adult high school equivalency diploma program or other education, rehabilitation, or training program shall forfeit any reduction in sentence that the prisoner would have been entitled to under this section.

History

(1991 (Reg. Sess., 1992), c. 841, s. 1; 1993, c. 538, s. 36; 1994, Ex. Sess., c. 24, s. 14(b); 1993 (Reg. Sess., 1994), c. 767, s. 2; 2001-200, s. 2; 2014-115, s. 28(i); 2020-83, s. 8(o).)

Editor's Note. - Session Laws 2020-83, s. 8(p), made the amendment of subsection (b) of this section by Session Laws 2020-83, s. 8(o), effective August 1, 2020, and applicable to offenses committed, sentences imposed, and any other orders of imprisonment issued on or after that date.

Effect of Amendments. - Session Laws 2014-115, s. 28(i), effective August 11, 2014, substituted "an adult high school equivalency diploma program" for "a general education development diploma program (GED program)" in subsection (b); and substituted "an adult high school equivalency diploma" for "a GED" twice in subsection (c).

Session Laws 2020-83, s. 8(o), added "or a person under the age of 18 convicted of a misdemeanor offense and housed in a detention facility approved by the Juvenile Justice Section of the Division of Adult Correction and Juvenile Justice" and made a related stylistic change in subsection (b). For effective date and applicability, see editor's note.

§ 162-61. Liability of county.

The county working prisoners pursuant to G.S. 162-58 shall remain liable for emergency medical services for those prisoners pursuant to G.S. 153A-224 while the prisoners are working. The county working the prisoners shall be liable to third parties for injuries incurred by the third parties through the negligence of the working prisoners to the same extent as the county is liable for the actions of its employees. Chapters 96 and 97 of the General Statutes shall have no application to prisoners working pursuant to G.S. 162-58.

History

(1991 (Reg. Sess., 1992), c. 841, s. 1.)

CASE NOTES

Cited in Harris v. Thompson Contrs., Inc., 148 N.C. App. 472, 558 S.E.2d 894 (2002), aff'd, 356 N.C. 664, 576 S.E.2d 323 (2003).


§ 162-62. Legal status of prisoners.

  1. When any person charged with a felony or an impaired driving offense is confined for any period in a county jail, local confinement facility, district confinement facility, or satellite jail/work release unit, the administrator or other person in charge of the facility shall attempt to determine if the prisoner is a legal resident of the United States by an inquiry of the prisoner, or by examination of any relevant documents, or both.
  2. If the administrator or other person in charge of the facility is unable to determine if that prisoner is a legal resident or citizen of the United States or its territories, the administrator or other person in charge of the facility holding the prisoner, where possible, shall make a query of Immigration and Customs Enforcement of the United States Department of Homeland Security. If the prisoner has not been lawfully admitted to the United States, the United States Department of Homeland Security will have been notified of the prisoner's status and confinement at the facility by its receipt of the query from the facility.
  3. Nothing in this section shall be construed to deny bond to a prisoner or to prevent a prisoner from being released from confinement when that prisoner is otherwise eligible for release.
  4. Repealed by Session Laws 2010-97, s. 12, effective July 20, 2010.

History

(2007-494, s. 1; 2010-97, s. 12.)

Effect of Amendments. - Session Laws 2010-97, s. 12, effective July 20, 2010, in subsection (b), in the first sentence, deleted "through the Division of Criminal Information (DCI) system to the Law Enforcement Support Center (LESC)" following "shall make a query," and in the last sentence, deleted "the LESC determines that" following "If" and "DCI" preceding "query from"; and deleted subsection (d), which read: "The administrator or other person in charge of the facility shall annually report the number of queries performed under subsection (b) of this section and the results of those queries to the Governor's Crime Commission of the Department of Crime Control and Public Safety. The Governor's Crime Commission shall make the reports available to the public."

CASE NOTES

Sheriff's Agreement with Immigration and Customs Enforcement. - Trial court had no jurisdiction to issue writs of habeas corpus directing a sheriff to release prisoners detained at the request of Immigration and Customs Enforcement because the statute authorizing the sheriff to detain the prisoners controlled over a more general statute preventing a sheriff from detaining a prisoner otherwise eligible for release. Chavez v. Carmichael, 262 N.C. App. 196, 822 S.E.2d 131 (2018), rev'd, vacated, aff'd, and modified, in part, remanded, 374 N.C. 458, 843 S.E.2d 139, 2020 N.C. LEXIS 500 (2020).