Kansas Attorney General Opinion 1992-061

ROBERT T. STEPHAN
ATTORNEY GENERAL
May 13, 1992
ATTORNEY GENERAL OPINION NO. 92- 61
James L. Francisco, Chairman
Kansas Parole Board
Landon State Office Building
900 Jackson Street, 4th Floor
Room 452-S
Topeka, Kansas 66612-1220
Re: Criminal Procedure; Kansas Code of Criminal
Procedure--Release Procedures--Parole Eligibility;
Conditions of Release; Additional Programs
State Departments; Public Officers and
Employees--Department of Corrections; Secretary of
Corrections--Program Agreements Between Secretary
and Inmate; Completion of Certain Programs to be
Prepared for Release on Parole; Authority of Kansas
Parole Board
Synopsis: The secretary of corrections is the official
authorized to designate the programs which an
inmate must participate in and successfully
complete in order to be prepared for release on
parole. The parole board may not require the
inmate to participate in programs which have not
been set forth in the agreement entered into
pursuant to K.S.A. 1991 Supp. 75-5210a by the
secretary of corrections and an inmate. Cited
herein: K.S.A. 1991 Supp. 22-3717; 75-5210;
75-5210a; L. 1988, ch. 115, SS 1, 6.

Dear Mr. Francisco:
As chairman of the Kansas parole board, you request our
opinion regarding whether the department of corrections may
include within an agreement entered into pursuant to K.S.A.
1991 Supp. 75-5210a a requirement that the inmate participate
in a pre-release program or work release program.
K.S.A. 1991 Supp. 75-5210a obligates the secretary of
corrections to enter into written agreements with inmates
specifying the educational, vocational, mental health or other
programs which the secretary of corrections determines the
inmate must satisfactorily complete in order to be prepared
for release on parole. The agreements are to be entered into
within a reasonable time after the inmate is committed to the
custody of the secretary of corrections. K.S.A. 1991 Supp.
75-5210a. "If the secretary determines that the inmate's
conduct, employment, attitude or needs require modifications
or additions to those programs which are set forth in the
agreement, the secretary shall revise the requirements."
Id. As part of the agreement, the secretary of corrections
agrees to report to the parole board the fact that the inmate
has satisfactorily completed the programs required by the
agreement. Id. If the inmate becomes eligible for parole
before satisfactorily completing the programs required by the
agreement, the secretary of corrections is obligated to report
to the parole board the programs which the inmate must yet
satisfactorily complete. Id.
The interpretation of a statute is a matter of law and it is
the function of the court to interpret a statute to give it
the effect intended by the legislature. Brabander v.
Western Cooperative Electric, 248 Kan. 914, 917 (1991). The
fundamental rule of statutory construction is that the purpose
and intent of the legislature governs when that intent can be
ascertained from the statute. Id. at 916. In construing
statutes, the legislative intent must be determined from a
general consideration of the entire act. State ex rel.
Stephan v. Kansas Racing Commission, 246 Kan. 708, 719
(1990). If possible, effect must be given to all provisions
of the act, and different provisions must be reconciled in a
way that makes them consistent, harmonious, and sensible.
Id. In determining legislative intent, the court is not
limited to a mere consideration of the language employed but
may properly look into historical background of the enactment,
the circumstances attending and subsequent to its passage, the
purposes to be accomplished, and the effect the statute may
have under the various constructions suggested. Workers

Compensation Fund v. Silicon Distributing, Inc., 248 Kan.
551, 556 (1991). When a statute is plain and unambiguous, the
court must give effect to the intention of the legislature as
expressed, rather than determine what the law should or should
not be. State v.Coley, 236 Kan. 672, 675 (1985).
The secretary of corrections is authorized under subsection
(a) of K.S.A. 1991 Supp. 75-5210 to:
"[E]stablish programs of classification
and diagnosis, education, casework,
mental health, counseling and
psychotherapy, chemical dependency
counseling and treatment, sexual offender
counseling, prerelease programs which
emphasize re-entry skills, adjustment
counseling and job placement, vocational
training and guidance, work, library,
physical education and other
rehabilitation and recreation services;
the secretary may establish facilities for
religious worship; and the secretary shall
institute procedures for the study and
classification of inmates." (Emphasis
added.)
K.S.A. 1991 Supp. 75-5210 provides a partial list of the
programs which are the subject of the agreements entered into
pursuant to K.S.A. 1991 Supp. 75-5210a. It is clear from the
terms of K.S.A. 1991 Supp. 75-5210a that the secretary of
corrections is the official authorized to determine whether an
inmate must participate in and satisfactorily complete
programs, and the secretary of corrections is authorized to
enter into agreements with inmates outlining such
participation. Satisfactory completion by the inmate of the
programs required by the agreement entered into pursuant to
K.S.A. 1991 Supp. 75-5210a is one of the factors to be
considered by the parole board in determining whether to grant
parole to an inmate. K.S.A. 1991 Supp. 22-3717(f).
"If an agreement has been entered under
K.S.A. 75-5210a and amendments thereto and
the inmate has not satisfactorily
completed the programs specified in the
agreement, or any revision of such
agreement, the [parole] board shall notify
the inmate in writing of the specific
programs the inmate must satisfactorily

complete before parole will be granted.
If parole is not granted only because of a
failure to satisfactorily complete such
programs, the board shall grant parole
upon the secretary's certification that
the inmate has successfully completed such
programs. If an agreement has been
entered under K.S.A. 75-5210a and
amendments thereto and the secretary of
corrections has reported to the board in
writing that the inmate has satisfactorily
completed the programs required by such
agreement, or any revision thereof, the
board shall not require further program
participation. However, if the board
determines that other pertinent
information regarding the inmate warrants
the inmate's not being released on parole,
the board shall state in detail the
specific reasons for not granting the
parole." K.S.A. 1991 Supp. 22-3717(h)
(emphasis added).
This provision was enacted by the same bill as the original
version of K.S.A. 1991 Supp. 75-5210a was enacted. See L.
1988, ch. 115, SS 1, 6. From this provision, it is clear
that the parole board is excluded from making program
recommendations. Minutes, Senate Committee on Judiciary,
Attachment II, April 5, 1988. The secretary of corrections is
the official authorized to designate the programs which an
inmate must participate in and successfully complete in order
to be prepared for release on parole. The parole board may
not require the inmate to participate in programs which have
not been set forth in the agreement entered into pursuant to
K.S.A. 1991 Supp. 75-5210a by the secretary of corrections and
an inmate.
Very truly yours,
ROBERT T. STEPHAN
Attorney General of Kansas
Richard D. Smith
Assistant Attorney General
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