Request By:
Mr. James R. Shelton
Graves County Jailer
Mayfield, Kentucky 42066
Opinion
Opinion By: Steven L. Beshear, Attorney General; Elizabeth E. Blackford, Assistant Attorney General
You have written to ask several questions relating to the duties of a jailer which we will answer in seriatim:
1) Who is responsible for taking prisoners from the jail to appear before the court?
Previous opinions of this office had stated that the primary duty for transporting prisoners rested upon the jailer, with the duty shifting to the sheriff upon a proper showing of need. See OAG 78-653; OAG 78-752. These opinions were in error as they ignored KRS 441.500, and are hereby withdrawn and overruled. 1 While the author can offer no excuse for the prior error, she might add, as did the
Honorable Justice Edward P. Hill in Scott v. Commonwealth, Ky., 495 S.W.2d 800, 802 (1972) when overruling one of his earlier opinions, that the previous mistake only went to prove "that a careless foxhound may sometimes lead the whole pack astray." However, the foxhound is now back on the scent, and hereby opines that KRS 441.500 is the controlling statute in determining who bears the duty of transporting prisoners from the jail to the court. That statute reads as follows:
"441.500. Transporting to and from detention facility. -- (1) If an accused is confined in a detention facility, he shall be transported as necessary in accordance with the following provisions, unless otherwise ordered by the court:
(a) If he is lodged in a city jail in the county where the trial is to be held, the city police shall carry out this duty.
(b) If he is lodged in an urban-county facility in the county where the trial is to be held, the jailer shall carry out this duty.
(c) In all other cases the sheriff of the county where the trial is to be held shall carry out this duty.
(2) If an accused is sentenced to confinement, the sheriff shall deliver him to the proper detention facility, with these exceptions:
(a) If he is sentenced to a facility which is operated by a city within the county where the trial is held, the city police shall deliver him to the proper facility.
(b) In the case of a sentence to an urban-county detention facility, the jailer shall carry out this duty. (Enact. Acts 1976 (Ex. Sess.), ch. 22, § 55, effective January 2, 1978.)"
Clearly, the primary duty rests upon the sheriff unless the circumstances fall within one of the exceptions established by subsections 1(a) and (b) or 2(a) and (b). However, it should be noted that the jailer, as an officer of the court subject to the court's command, shall perform this duty when ordered to do so by the court. KRS 71.050.
The foregoing answer mandates comment on the impact of KRS 441.500 upon KRS 64.150 which provides in part that the jailer shall be paid a fee for: "Attending district or circuit court (jailershall be paid the fee for each day a prisoneris transported to court)$6.00."
Because the jailer has no duty (with the exception of the jailer in an urban-county) to transport the prisoner, and because he has no automatic duty to attend court (See answer to questions 2 and 3, infra) this office is of the opinion that he is not entitled to collect the $6.00 fee established by KRS 64.150 on an automatic basis whenever a prisoner is transported to court. 2 This conclusion is premised upon the fact that KRS 64.150 specifically says the jailer shall be paid the enumerated fees for his or her "services". The term "services" has been interpreted to mean services rendered throughout the history of the fee system. 3 The jailer (with the exception of the urban-county jailer) has no automatic duty either to transport or to attend the court. He does not automatically perform any service. Therefore, he is not automatically entitled to the fee.
The lack of entitlement extends to the sheriff as well as the jailer. In OAG 78-752, now overruled, this author opined that the sheriff was entitled to collect the $6.00 fee established by KRS 64.150 when he transported prisoners to the court pursuant to the portion of KRS 64.090 which says that the sheriff shall be paid the same fees as the jailer when he performs the duty of the jailer. The rationale underlying that opinion was that the jailer did have the duty to transport prisoners, that the sheriff was performing the jailer's duty when he transported the prisoners and was therefore, entitled to the $6.00 fee pursuant to the "fee shifting" provisioin of KRS 64.090. However, KRS 441.500 supersedes both the rationale and the conclusion. 4
If the sheriff transports prisoners pursuant to KRS 441.500, he is performing a duty imposed on him, not the jailer. He is not performing a duty of the jailer. Therefore, the fee shifting provision is not applicable. Consequently, he is not entitled to that fee. We must point out that neither KRS 441.500 nor any other statute provides a fee for the service of transporting the accused from the detention facility to the court. Consequently, the sheriff is not entitled to charge or collect any fee for rendering that service at the present time.
As a final note to the impact of KRS 441.500 upon KRS 64.150 we would add that where the court orders the jailer to attend the court and/or to transport the prisoner (in counties other than an urban-county) , the jailer would be entitled to collect the $6.00 fee, for then he will have provided the service for which the fee is authorized.
In summary, it is the opinion of this office that the sheriff bears the duty of transporting prisoners to the court except in those situations set forth in KRS 441.500(1)(a) and (b) and 2(a) and (b); that neither the jailer nor the sheriff may charge the $6.00 fee set out in KRS 64.150 in those instances where KRS 441.500 has placed the transportation duty upon the sheriff if the sheriff in fact performs the service of transporting the prisoners to the court; but that the jailer may charge the $6.00 fee if, under a court order, he transports prisoners in an instance where the duty of transportation is ordinarily placed on the sheriff by KRS 441.500. The foregoing does not apply in urban-counties, for there, the jailer still bears the duty of transportation and is entitled to charge the $6.00 fee if he performs the service, and the sheriff is entitled to collect the fee if he does the transporting in lieu of the jailer.
2) and 3) Is it mandatory for the jailer to attend court when he has an inmate appearing before the court? Is it mandatory for the jailer to attend court when he does not have an inmate appearing before the court?
The jailer has no automatic duty to attend court under either of the mentioned circumstances. It is mandatory that he attend court only when ordered to do so by the court. KRS 71.050; See also KRS 64.348 relating to compensation of sheriffs and other officers for attending court.
4) Under unusual circumstances, such as the court ordering a man to serve his time on weekends, is the court responsible for notifying the jail by sending a court order?
The simple answer is that you as jailer are authorized to release a convicted person only after you have been shown a certified copy of a judgment or court order authorizing the unusual confinement schedule. Once a convict has been committed to your care, you may release him only upon a lawful discharge. KRS 71.040. Lawful discharge occurs only where the term of the sentence has expired or where the judgment or court order states that the period of confinement is not to be consecutive and continuous by stating when the jailer is authorized to release the prisoner. KRS 532.120; 439.179; 533.030. Otherwise, it is presumed that the prisoner has been sentenced to ordinary confinement, which means consecutive and continuous confinement. KRS 532.120; 439.179. If the unusual circumstances of confinement are contained in the original judgment of conviction, the judgment should be delivered to you by the sheriff when he places the prisoner in your care. RCr 11.22. The judgment should show how many days credit the defendant has been given for out the terms of confinment. KRS prior time served and should set out the terms of confinement. KRS 532.120; 533.020; 439.179; RCr 11.04. However, if the terms of confinement are changed after the prisoner has begun service of the term (i.e. - a work release), you may release him upon receipt of the court order regardless of who delivers the court order to you.
5) When the court releases an inmate, other than on bond, shouldn't the court send the jail a release form?
Again, you are authorized to release the prisoner only upon court order. Therefore, you must be provided with a certified copy of that order, though it is not necessarily the responsibility of the court to see to it that you receive that order.
6) When the court orders a man to serve time, shouldn't the court send the jail an order stating the number of days he is to serve and the date to release him?
The judgment is to contain the sentence. This includes number of days to be served and the number of days which are to be credited towards the sentence term as a result of confinement preceding conviction. RCr 11.04; KRS 532.120. However, the judgment does not have to contain the date of release - the jailer is to calculate that from the data which is set forth in the judgment.
Footnotes
Footnotes
1 KRS 441.500 also supersedes all opinions written before its enactment in 1976 which placed the primary duty for transporting prisoners from the jail to the court upon the failer. Therefore, all previous opinions to that effect are also hereby overruled.
2 This portion of the opinion has no impact upon the urbancounty jailer who still bears the primary transportation duty pursuant to KRS 441.500 and who, whenever he or she does transport a prisoner, renders the service which would entitle him or her to collect the $6.00 fee.
3 See, for instance, Webster County v. Vance, Ky., 362 S.W.2d 723, 724 (1962) wherein the court said:
"All fees are collected by officers in their official capacity. The fees respresent the charges which the state, the county or municipal corporation, respectively, makes for services rendered through its officers . . ." (Emphasis added.)
By the same token KRS 64.450 notes that "any officer who issues a fee-bill that contains any . . . item for services not rendered . . ." will be liable to any person whose property has been the subject of distraint by virtue of the fee-bill. Too, KRS 64.460 provides for a fine upon any officer which shall be paid to any person who pays a fee-bill or a claim for fees where the claim includes a "charge for services not actually rendered".
The clear import of all of the foregoing is that an officer may charge the fee only where he has a duty to perform the service and where he does in fact perform the service.
4 Again we would note that this does not apply to the sheriff of an urban-county, for there he is doing a duty of the jailer when he transports a prisoner to court and is still entitled to the $6.00 fee established by KRS 64.150 pursuant to the fee shifting provision of KRS 64.090.