[1997/oagheade.htm]

OAG 97-5

February 25,1997

Subject: Sheriff's fee for serving a criminal complaint and summons

Written By: Douglas Scott Porter, Assistant Attorney General

Requested By: Steve O'Connor, Morgan County Attorney

Syllabus: It is improper for a sheriff to demand the prepayment of fees before executing a summons or performing an arrest in misdemeanor or criminal cases. The fee for summons or arrest in a misdemeanor case is $10.00; for criminal summons or arrest warrant in a felony case is $20.00; and for warrantless arrest in a felony case is $10.00.

Statutes Construed: KRS 64.060, KRS 64.090, KRS 64.340 and KRS 453.020

Opinion of the Attorney General

The Office of the Attorney General has been asked to render an opinion regarding the practice of a sheriff's office requiring the prepayment of fees before the sheriff's office will deliver a summons in a criminal matter. Steve O'Connor, Morgan County Attorney, has asked whether this practice is improper.

LEGAL ANALYSIS

This very issue was first visited by the Office of the Attorney General in 1979. OAG 79-372 opined that the statute which establishes a fee for serving a warrant in a criminal case, KRS 64.090, made no provision for the advance payment of a fee pertaining to the service of criminal process. The opinion concluded that the sheriff or any officer who was permitted to serve such a process shall be ultimately entitled to the fee only if: (1) the defendant is convicted; and (2) the defendants pays over such costs to the clerk as per KRS 64.340.

In 1980, the Office of the Attorney General was asked to reconsider OAG 79-372 in light of the General Assembly amending KRS 64.090. The amendment only raised the dollar amount of the fees and did not change any of the language construed by the previous opinion. OAG 80-271 performed a very thorough analysis of the history behind KRS 64.090 and its predecessor statutes which date as far back as 1893. The opinion also reviewed a very early case which interpreted what is now KRS 64.340, Bell County v. Minton, 239 Ky. 840, 40 S.W.2d 379 (1931). At the conclusion of the analysis, OAG 79-372 was affirmed. OAG 80-271 concluded that any fees for service of process were to be paid under the following conditions: (1) the defendant is convicted; (2) the defendant, upon judgment of the costs being entered, pays the fee into the court clerk; (3) the court clerk, assuming conditions (1) and (2) are satisfied, pays over the fee to the sheriff. A sheriff's office was thus, not permitted to require the prepayment of a fee before serving criminal process.

Two latter opinions, OAG 82-140 and OAG 82-535, reached the identical conclusion as detailed above. OAG 82-535 delved into the possibility that a defendant would not be convicted. Citing KRS 453.020 and Frazier v. Toliver, 204 Ky. 79, 263 S.W. 713 (1924), the opinion recognized that a defendant would only be responsible for costs in a criminal action upon his conviction. In a situation where the defendant is not then convicted, whether it is a misdemeanor or felony charge, there exists no statutory means by which a sheriff can collect his fee. As suggested in OAG 82-535, this anomaly is a situation that only the legislature can remedy.

The issue of the specific dollar amount of the fees for a sheriff's services was addressed by this Office in OAG 96-34. The fees are set forth in KRS 64.060 and KRS 64.090. The fee for summons or arrest in a misdemeanor case is $10.00. The fee for serving a criminal summons or arrest warrant in a felony case is $20.00. The fee which a sheriff would be entitled to for a warrantless arrest in a felony case is $10.00.

CONCLUSION

Sheriffs' fees for serving criminal process are set forth in KRS 64.090. For serving a criminal summons or arrest warrant in felony cases, the fee is $20.00 and the fee for serving a summons or arrest in a misdemeanor case is $10.00. It is our opinion that the statutes or law interpreted in OAG 79-372, OAG 80-271, OAG 82-140 and OAG 82-535 have not been amended by the General Assembly. The opinions are still consistent with the law and there is no reason why they should be withdrawn. Therefore, it is the opinion of the Attorney General that a sheriff is not permitted to require prepayment of fees prior to serving criminal process. A sheriff can only collect the authorized fee under the following conditions: (1) the defendant is convicted; (2) the defendant, upon a judgment of costs being entered, pays the fee into the court clerk; (3) the court clerk, assuming conditions (1) and (2) are satisfied, pays over the fees to the sheriff.

A.B. CHANDLER III

ATTORNEY GENERAL

DOUGLAS SCOTT PORTER

ASSISTANT ATTORNEY GENERAL