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VOLUME NO. 57 OPINION NO. 5
March 18, 2020
Stephen A. Gannon
Chouteau County Attorney
P.O. Box 459
Fort Benton, MT 59442
Dear Mr. Gannon:
You have requested my opinion on the following question:
Must the county sheriff deposit the fees for concealed weapons permits in
either a designated account with the county treasury or the general fund of
the county treasury depending on the intended use of those fees?
In preparing this Opinion, I have considered the analysis in your Legal Memorandum
accompanying your request for an Attorney General Opinion and written comments
received in response to a draft opinion circulated by my office.
1. Backqround
The administration of granting concealed weapon permits (CWP) lies with county
sheriffs. See Mont. Code Ann. § 45-8-321 to 45-8-325. The fee for issuance of a
permit is $50. The permit must be renewed for additional 4-year periods upon
payment of a $25 fee for each renewal . . . . Id. § 45-8-322(2). Additionally, a county
sheriff may charge $5 for fingerprinting to conduct the mandatory background check.
Id. § 45-8-322(4). County sheriffs are permitted to retain these fees for the purpose
of implementing CWP statutes. Id. § 45-8-322(5) (Permit, background, and
fingerprinting fees may be retained by the sheriff and used to implement 45-8-321
through 45-8-325.). This statute is silent on how CWP fees are to be held pending
their use in implementing CWP statutes. According to your request for an Attorney
General Opinion, prior to 2009, the Chouteau County Sheriff deposited CWP fees
into a designated county treasury revenue account. Since then, however, the
Chouteau County Sheriff has deposited all CWP fees into a bank account not
controlled by the county. Recently, this process was flagged in an audit resulting in
your request.
2. The Law of Collection of Fees by County Officers in Montana
County sheriffs have a legal duty to collect CWP fees and implement CWP statutes.
Id. § 45-8-321 to 45-8-325. Accordingly, these tasks are an official service of the
office and may not be held by the officer for their personal use. See, e.g., Platz v.
Hamilton, 653 P.2d 144, 201 Mont. 184 (1982) (holding because a county clerk of
court had no statutory obligations concerning passport applications and voluntarily
chose to execute passport applications, the clerk was not required to remit the
passport fees to the county treasurer); 49 Mont. A.G. Op. 12 (2001) (holding [a]
sheriff may receive compensation from a federal agency under the terms of a
Montana Administrative Register](ViewImageLocal?handle=hein.sag/sagmt0067&div=1&collection=&method=preview&ext=.png&size=3)