Request By:
Mr. Joseph L. Moore
County Fee Systems
Executive Department for
Finance and Administration
Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Under present law the Executive Department for Finance and Administration is responsible for receiving fines and costs (commonwealth attorney tax, county attorney tax, and county judge tax) assessed in quarterly and magistrates' courts. Upon receipt, such fines and costs are deposited to the proper statutory accounts, and commissions are paid to the officials authorized by law. Several county judges are allowing the payment of fines and costs on an installment basis. See KRS 534.060.
Your question reads: "On January 2, 1978, which local official will be responsible for collecting installments on previously assessed fines and costs; and to the treasury of which unit of government (local or state) will these funds be deposited? "
Under present law, the following costs are required to be paid into the state treasury through your office: The commonwealth attorney tax of $3.50 (KRS 142.030), the county attorney tax of $3.50 (KRS 142.040), and misdemeanor tax of $2.50 (KRS 453.030). These costs go into accounts which are designed to fund the expense accounts of the commonwealth attorneys, county attorneys, and county judges.
Concerning quarterly and magistrate court assessed fines and costs, the county attorney and commonwealth's attorney under present law are allowed 40% each of such fines. KRS 69.260 and KRS 64.510. The circuit clerk gets 5% of such fines forwarded to the clerk under KRS 28.170 for deposit in the state treasury. Under KRS 431.110, generally all fines imposed by the county judge of each county and paid into the state treasury through the circuit clerk and your office shall, after deducting the percentages allowed the above officers, be paid into the county (from which sent) treasury. This amounts to 15% of the fines going back to the county.
Since the quarterly and justices' courts will not be in existence on and after January 2, 1978, any fines assessed prior to that date by such courts will necessarily have to be handled under the present statutes. There is no other applicable statutory treatment of this interim problem. This simply means that such fines and costs assessed by the quarterly and justices' courts prior to January 2, 1978, but not collected until January 2, 1978, or thereafter, will have to be reported and turned over to the circuit court clerk by the court of collection. Such report must show, inter alia, the date of the adjudged fine and costs. Then the clerk should forward such receipts to the Executive Department for Finance and Administration, as required by KRS 28.170, for ultimate deposit in the state treasury. Since 1977 is the last year of the county attorney's regular term, any such fee percentage (40%) earned in 1977 [though collected in 1978] should be considered in determining the excess fees of his office. Funk v. Milliken, Ky., 317 S.W.2d 499 (1958). Thus the commissions of the county attorney should be sent to him for his further accountability to the fiscal court. See OAG 70-11, copy enclosed.
Where the fines were adjudged by a justice of the peace, the fines should finally go into the state treasury, general fund, less the commission paid to the county attorney as aforementioned. Where the fines were adjudged by the county judge, the fines should go to the county treasury under KRS 431.110, less the commission paid to the county attorney.
Pursuant to the 1976 Acts (Ex. Sess), Ch. 17, §§ 42, 43, as of January 1, 1978, the commonwealth attorney tax (KRS 142.030) and county attorney tax (KRS 142.040) go into the general fund, state treasury. The $2.50 misdemeanor tax under KRS 453.030 should be collected by the district court. The statute was left intact by the 1976 Extraordinary Session without the necessary modification. The county judge expense statute (KRS 25.320) was repealed by Acts 1976 (Ex. Sess.), Ch. 14, § 492(5), effective January 2, 1978. On the latter date KRS 67.722 (expense allowance for county judge/executive for administering county road program) becomes effective. The commonwealth attorney's commission statute (KRS 64.510) was repealed, effective January 1, 1978, by Acts 1976 (Ex. Sess.), Ch. 17, § 52. The county attorney's commission statute (KRS 69.260) was repealed, effective January 1, 1978, by Acts 1976 (Ex. Sess.) Ch. 17, § 52. On and after January 2, 1978, the commonwealth attorney and county attorney (for prosecutorial work) will be paid directly out of the state treasury. KRS 28.170 was repealed as of January 2, 1978, by 1976 Acts (Ex. Sess.), Ch. 14, § 492(7), as it relates to clerks and courts other than circuit court and circuit clerk.