OAG 95-27

July 7, 1995

Subject: Sheriff's Duty to Transport Prisoner Pursuant to Court Order, Despite Absence of Statute Authorizing Payment of the Sheriff or Other Officer from the State Treasury for Such Service.

Written by: Gerard Gerhard

Requested by: William E. Wehrman, Jr., Esq., on behalf of Kentucky County Sheriff William Steenken

Syllabus: Sheriff, despite the absence of a statute authorizing payment of the sheriff or other officer from the state treasury for transporting a prisoner in connection with a bench warrant issued regarding a civil action, has a statutory duty to obey court order directing transportation of prisoner.

OAGs cited: 74-309, 83-487

Statutes construed: 61.170; 64.070(2)(a); 64.410(2)(a) and (b); 70.140

Constitutional provisions cited: � 109

Opinion of the Attorney General

The following question, in substance, has been presented:

May a sheriff properly refuse to obey a court order directing his return of a prisoner from another county, where the prisoner is held under a bench warrant for failure to appear for a show cause hearing, since there is no statutory authorization for payment from the state treasury for such service?

In our view the answer is no. A sheriff, despite the absence of statutory authorization for payment from the state treasury for a service directed by court order, is under a statutory duty to obey court orders. KRS 70.140. Discussion follows.

Factual Background

The facts which gave rise to the matter here addressed are, as we understand them:

A bench warrant was issued by the Kenton Circuit court for the arrest of an individual for failure to appear for a show cause hearing associated with a child support case. The “charge,” as such, was of the nature of civil contempt of court. A felony was not involved. The individual was arrested in Powell County. The Kenton Circuit Court directed the Kenton County Sheriff to return the individual to Kenton County, which the sheriff did.

The sheriff submitted a claim to the County Fees Systems Branch (now attached to the Finance and Administration Cabinet's Department for Administration) for expenses in the amount of $67.68 for returning the individual to Kenton County. County Fee Systems denied the claim on the ground that the matter involved was civil and the charge was not a felony.

The sheriff believes that since the claim arose from a proper order of the Circuit Court, it should have been paid by the Commonwealth. As explained by the request to this office, if the claim is not proper, the sheriff's office will respectfully refuse to comply with all future court orders of a similar nature unless they involve a criminal cause where the charge is a felony.

Legal Analysis

A. State Agency Cannot Pay Claim Not Authorized by Statute

Our research did not disclose any statute authorizing payment from the state treasury for prisoner transportation under the facts here involved. KRS 64.070(2)(a) authorizes payment to an officer for conveying a prisoner charged with a felony from one county to another, but that was not the circumstance of the prisoner involved. Absent a statute authorizing its payment of the expenses in question from the state treasury, County Fee Systems acted properly in denying payment. See, for example, Suter v. Stone, 108 Ky. 518, 56 S.W. 971 (1900). And see, City of Fulton v. Shanklin, 275 Ky. 772, 122 S.W.2d 733 (1938), Smothers v. Washington County Fiscal Court, 294 Ky. 35, 170 S.W.2d 867 (1943), and, Opinions of the Attorney General (OAG) 74-309 and 83-487. Note also KRS 64.410(2)(a) and (b), which, although specifically addressing a “fee,” might include expenses as a fee (see Shanklin, above, at 735).

B. Sheriff's Duty to Obey Orders of Court of Justice

At the same time that no statute authorizes payment from the state treasury of a sheriff or other officer for transporting a prisoner in connection with a bench warrant related to a civil matter, KRS 70.140 provides:

The sheriff shall, by himself or deputy, attend and keep order in the fiscal court and any court of the Court of Justice and shall obey the orders of said courts.

From the above quoted statute it can be seen that it is the affirmative duty of the sheriff to obey orders of the Court of Justice, which includes the Circuit Court, which issued the order here concerned. See Constitution of Kentucky � 109.

In Graves County v. Wallace, 144 Ky. 194, 138 S.W. 306, 308 (1911) (copy enclosed), Kentucky's then highest court observed, in part pertinent here:

[U]nder the statutes of this state and the repeated adjudications of this court, there are many duties which officers like sheriffs and clerks have to perform by virtue of their office, and for the payment of which no provision has been made. In such case the officer performing the services is not entitled to any fee. [Citations omitted.]

In our view it is obvious from the above quoted language that, despite the absence of a fee or authorization for payment of expenses, the duty of returning a prisoner pursuant to an order of the Circuit Court must be carried out. KRS 70.140.

Refusal of the sheriff to transport a prisoner under the facts presented would presumably expose the sheriff to a citation for contempt of court. Such refusal might also be grounds for the sheriff's indictment for malfeasance or neglect of office under KRS 61.170.

The absence of authorization for payment of an officer for the expenses under the circumstance concerned here might be an issue the sheriff would want to bring to the attention of the General Assembly.

It should be noted that although payment from the state treasury is not authorized for the specific service here involved, expenses for the service are, if properly documented, chargeable against excess fees. See OAG 74-309.

Copies of cases and opinions cited in this opinion are enclosed.

Chris Gorman

Attorney General

Gerard R. Gerhard

Assistant Attorney General