Request By:
Honorable William F. Bennett
Chief Judge, Daviess District Court
311 West Second Street
Owensboro, Kentucky 42301
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter to which is attached a letter from the city attorney of the City of Owensboro pertaining to KRS 95.480. The city attorney states the statute provides that the city should receive fees for service of process by city policemen. Police officers are not receiving such fees and the problem in part involves the collection of the fees earned and the payment to the officers (for the use of the city) of those fees. You request information as to how the matter should be handled.
KRS 95.480 provides in part as follows:
"(2) The chief of police may receive the same fees, for the use of the city or urban-county government, that sheriffs are entitled to receive for like services, and have the same power to collect them.
(3) The chief of police, policemen deputized by him, and others to whom the process of a court is directed and comes for execution shall execute and return the process within the time prescribed by law for sheriffs to execute and return similar process, and on their failure they and their sureties shall be liable to the same penalties as sheriffs. They shall be subject to similar penalties for not paying over moneys collected on execution, making illegal charges, false returns and like illegal acts."
Not only does KRS 95.480 specifically provide that the fees earned shall be for the use of the city, but KRS 83A.070(4) states, "All fees and commissions authorized by law shall be paid into the city treasury for the benefit of the city and shall not be retained by any officer or employe."
In connection with the obligation of the city police to provide services for the district court, see KRS 24A.140(3). That statute states that when sessions of the district court are held in city facilities the city police shall be responsible for attending court, keeping order, and providing the same services to district court as are provided by the sheriff to circuit court. Compensation for these services shall be the same as allowed to the sheriff.
KRS 64.340 deals with the requirements that must be satisfied before any officer, including police officers, shall be entitled to any fee in a proceeding for a misdemeanor. That statute provides that no officer shall be entitled to a fee in a proceeding for a misdemeanor unless the fee is recovered and collected from the defendant, in which case the fee allowed and taxed shall be the same as for similar services in civil cases.
The statutory fees for services performed by the police officers are separately taxed in the costs and are payable to the police officers under the following conditions and circumstances: (1) the defendant is convicted; (2) the defendant, upon a judgment of conviction and costs being entered, pays the fee into the court clerk; (3) the court clerk, assuming conditions (1) and (2) have been satisfied should pay the appropriate statutorily authorized fee to the police officer; (4) the police officer receiving the fee must turn it over to the city treasury. See OAG 79-545, copy enclosed. The clerk is under no affirmative duty to collect such fees for the police officers and the city and they are payable only under the conditions set forth above.