August 12, 1994

ATTORNEY GENERAL OPINION NO. 94- 100

Charles E. Simmons

Chief Legal Counsel

Department of Corrections

Landon State Office Bldg., Suite 400-N

Topeka, Kansas 66612

Re:	Probate -- Care and Treatment for Mentally Ill Persons -- Persons Who Commit Sexually Violent Offenses; Civil Commitment; Agency with Jurisidiction; Parole Board

Synopsis:	In certain cases the Kansas parole board is an "agency with jurisdiction" over the release of inmates as that term is used in L. 1994, ch. 316, the sexually violent predator act. Cited herein: K.S.A. 1993 Supp. 21-4602; 22-3709; L. 1994, ch. 316, sec. 2 and sec. 3.

*	*	*

Dear Mr. Simmons:

As chief legal counsel for the Kansas department of corrections you ask whether the Kansas parole board is an "agency with jurisdiction" as that term is used in L. 1994, ch. 316, the sexually violent predator act. This act provides for an involuntary civil commitment of certain persons who are identified as sexually violent predators.

The act requires that the agency with jurisdiction give written notice to the prosecuting attorney when it appears that a person may meet the criteria of a sexually violent predator. L. 1994, ch. 316, sec. 3. This notice must be provided to the prosecuting attorney 60 days prior to:

"(1) The anticipated release from total confinement of a person who has been convicted of a sexually violent offense;

(2) release of a person who has been charged with a sexually violent offense and who has been determined to be incompetent to stand trial pursuant to K.S.A. 22-3305 and amendments thereto; or

(3) release of a person who has been found not guilty by reason of insanity of a sexually violent offense pursuant to K.S.A. 22-3428 and amentments thereto." L. 1994, ch. 316, sec. 3(a).

"Agency with jurisdiction" is defined as:

"that agency with the authority to direct the release of a person serving a sentence or term of confinement and includes the department of corrections and the department of social and rehabilitation services." L. 1994, ch. 316, sec. 2(f)

The Kansas parole board has authority to grant parole relating to any offense committed prior to July 1, 1993, and to grant parole for off [sentencing guidelines]-grid crimes committed on or after July 1, 1993. K.S.A. 1993 Supp. 22-3709(a). "Parole" by definition means the release of a prisoner to the community prior to the expiration of sentence, subject to specified conditions. K.S.A. 1993 Supp. 21-4602(d). The parole board thus has "authority to direct the release" of certain persons who are serving a sentence. In those situations where the parole board orders that parole be granted, the Kansas department of corrections may actually open the prison doors, but the legal release of the inmate has been directed by the parole board. Accordingly, for purposes of L. 1994, ch. 316, sec. 2(f) the Kansas parole board is an agency with jurisdiction in relation to the grant of parole for offenses committed prior to July 1, 1993 and in relation to the grant of parole for off-grid crimes committed on or after July 1, 1994.

Very truly yours,

ROBERT T. STEPHAN

ATTORNEY GENERAL OF KANSAS

Camille Nohe

Assistant Attorney General

RTS:JLM:CN:bas