[1997/oagheade.htm]

OAG 97-32

September 11, 1997

Subject: Clarification of OAG 97-3, filing fee of bail bonds

Written by: Douglas Scott Porter

Requested by: Katherine Mercer, Meade County Court Clerk and Donald Blevins, Fayette County Court Clerk

Syllabus: The filing fee of a bail bond is $21.00.

Statutes construed: KRS 64.010 (repealed), KRS 64.012, KRS 142.010(c), KRS 382.240, KRS 382.290(4), KRS 382.470, KRS 431.535, and KRS 431.536.

OAGs cited: OAG 97-3 (m); OAG 76-354 (f)

Opinion of the Attorney General

Since the publishing of OAG 97-3, several questions have been raised, and new information has been provided this office concerning actions permitted under KRS 382.290(4) and KRS 382.470. This opinion is being issued to resolve questions concerning the filing fee for a bail bond.

Legal Analysis

The original conclusion of OAG 97-3 was that the total fee for filing and releasing a bail bond was either $27.00 or $30.00, depending on the $3.00 noting of the marginal release (pursuant to KRS 431.536). Subsequent to the issuing of this opinion, the chairperson of the recording committee of the county clerks’ association contacted and informed this Office that the association has opted to discontinue the marginal notations in order to preserve the record after the microfilming process. This option is allowed pursuant to KRS 382.290(4) and KRS 382.470. Accordingly, the filing fee proposed in OAG 97-3 will need to be adjusted by discounting this notation fee.

The second concern that needs to be clarified, which also affects the fee amount, is whether the clerk is filing a miscellaneous real estate encumbrance or a "lien." The classification of each results in a different fee. The origins of this question date back to 1976 when KRS 431.535 was created. At that time, the fee schedule was set forth in KRS 64.010. This has since been repealed and recodified in the body of the current fee schedule, KRS 64.012.

In June of 1976, Jefferson County Clerk, Bremer Ehrler, requested an opinion concerning the fee for recording a bail bond. Although the fee schedule at that time has been repealed and recodified in the form of KRS 64.012, and those fees have been changed numerous times since 1976, the logic and reasoning of OAG 76-354 still holds. OAG 76-354 stated that the recording of a "real estate mortgage" governs this situation, and that the fee for recording a real estate mortgage clearly includes the subject bail bond and real estate schedule instruments as aforesaid. Despite the different monetary amounts contained in KRS 64.012, there is no reason to withdraw this holding. As set forth in KRS 64.012, the fee for recording a real estate mortgage is $8.00.

Pursuant to KRS 142.010(1)(c), the county clerk is entitled to charge a tax of $3.00 on each mortgage, financing statement, or security agreement. As discussed in OAG 97-3, it is also necessary to charge for postage and copying because KRS 382.240 mandates that each instrument recorded by the county clerk be delivered to the party entitled thereto. OAG 97-3, in reliance upon OAG 87-80 and OAG 84-91, opined that $1.00 for the cost of stamps, envelopes, and labor related to returning the documents is a reasonable fee and should be added to the charge of processing a bail bond.

The last issue to be discussed is the charge of filing a release. As discussed above, the clerks’ association has opted to no longer assess the $3.00 charge for noting the release in the margin. Pursuant to KRS 64.012, the charge for filing a release is $8.00. The clerk is also required to mail the release just as the clerk is required to mail the recorded bond, so a $1.00 charge again follows.

Conclusion

In reliance upon OAG 76-354, it is still the opinion of the Attorney General, that the miscellaneous encumbrance being recorded in the form of a bail bond should be treated and charged as a clerk would the recording of a mortgage of real estate. The total cost is follows:

$ 8.00 Bond filing, KRS 64.012

1.00 Postage, KRS 382.240

3.00 Legal Process Tax, KRS 142.010(b)

8.00 Filing a release, KRS 64.012

1.00 Postage for mailing release, KRS 382.240

$21.00 Total Filing Fee

Where the conclusion of OAG 97-3 is inconsistent with that amount contained herein, it is modified accordingly. It is therefore the opinion of the Attorney General that the filing fee for recording a bail bond is $21.00.

A. B. Chandler III

Attorney General

Douglas Scott Porter

Assistant Attorney General