Could a Kentucky sheriff require a criminal-process fee before serving a summons or making an arrest?

Plain-English summary

In 1997, Kentucky's Attorney General rejected a sheriff's practice of requiring payment before delivering a summons in a criminal matter. The opinion concluded that the sheriff had to serve the process without an advance fee. It read the fee statutes to permit payment to the sheriff only when the defendant was convicted, the court entered a judgment for costs, the defendant paid those costs to the clerk, and the clerk passed the fee to the sheriff.

The opinion also gave the amounts under the law it examined: $10 for a misdemeanor summons or arrest, $20 for a felony criminal summons or arrest warrant, and $10 for a warrantless felony arrest. The AG said that if a defendant was not convicted, the statutes then supplied no way for the sheriff to collect a fee.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Sheriffs serving criminal process

The sheriff's office could not make advance payment a condition of serving a criminal summons or carrying out an arrest. The AG reaffirmed four earlier opinions, finding that the statutes or law they interpreted had not been amended. It recounted a 1980 amendment that raised the fees without changing the language interpreted in OAG 79-372; OAG 80-271 had already considered that amendment.

County attorneys and court clerks

The question came from a county attorney whose sheriff's office sought payment before delivering a criminal summons. The opinion placed any eventual payment after conviction and judgment of costs: the defendant paid the clerk, and the clerk then paid the sheriff.

Common questions

Could a sheriff refuse to serve a criminal summons until the fee was prepaid?

No. The AG said the sheriff could not require prepayment before serving criminal process.

Who paid the sheriff's fee when the defendant was convicted?

Under the 1997 analysis, the defendant paid assessed costs to the court clerk after conviction. The clerk then passed the authorized fee to the sheriff.

What if the defendant was not convicted?

The AG said the statutes it examined provided no way for the sheriff to collect that fee. It said only the legislature could remedy that anomaly.

What amounts did the opinion identify?

It identified $10 for a misdemeanor summons or arrest, $20 for a felony criminal summons or arrest warrant, and $10 for a warrantless felony arrest. Those are the historical amounts discussed in the 1997 opinion.

Background and statutory framework

The AG considered KRS 64.060 and KRS 64.090 for the fee amounts and KRS 64.340 for payment through the clerk. It relied on its earlier opinions OAG 79-372, OAG 80-271, OAG 82-140, and OAG 82-535. The discussion of nonconviction cited KRS 453.020 and Frazier v. Toliver; the payment history discussed Bell County v. Minton.

Citations and references

• KRS 64.060 and KRS 64.090: criminal-process fee amounts discussed in the opinion.
• KRS 64.340: payment of costs through the court clerk.
• KRS 453.020: costs in criminal actions, discussed through an earlier AG opinion.
• Bell County v. Minton, 239 Ky. 840, 40 S.W.2d 379 (1931).
• Frazier v. Toliver, 204 Ky. 79, 263 S.W. 713 (1924).

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG97-005.htm

Original opinion text

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