Request By:
Mr. David H. Bland
Executive Director
Kentucky Jailers Association
Route #2, McCowans Ferry Pike
Versailles, Kentucky 40383
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your question relates to paying jail costs to another county where the other county holds a prisoner of the first county. You seek our response in order that you may suggest any necessary statutory changes to the General Assembly during this session. Your letter reads in part:
"Given the fact that under the new jail legislation, counties are expected to pay another county if that county is holding their prisoners, a question has been raised over the situation of a change in venue.
"Specifically if a prisoner's trial is moved from County A to County B and the prisoner is housed in County B's jail, is it legal for County B to charge County A a daily per diem rate? It has been my assumption that this would be correct; in fact to my knowledge that is the practice.
"Is this the correct practice?"
KRS 441.006 reads:
"(1) The fiscal court of each county shall provide for the incarceration of prisoners arrested in the county or sentenced or held by order of the courts in the county.
"(2) The fiscal court shall provide for the incarceration of prisoners by:
"(a) Providing and maintaining a jail in the county; or
"(b) Contracting with another county or a city for the incarceration and care of its prisoners and providing for the transportation of prisoners, including the provision of vehicles, drivers and guards.
"(3) Nothing in this section shall prohibit a county from providing facilities for holding prisoners for limited periods of time and contracting with another county or a city for longer periods of incarceration.
"(4) Any county may enter into an agreement pursuant to KRS 65.210 to 65.300 to provide or to use jail facilities."
Under the literal and express language of KRS 441.006, the fiscal court of any county is responsible for providing for the incarceration of prisoners under these situations: (a) prisoners arrested in that county; (b) prisoners sentenced by a court in that county; and (c) prisoners held in that county by order of a court in that county. Thus where that county, as defined above, does not have a jail, or where the county's jail is insufficient to house all prisoners to which the county's obligation to provide for incarceration attaches, such county must then contract with another county, to which the prisoners are sent for incarceration, making arrangements to pay for such expense of incarceration.
A change of venue may be obtained to secure a fair trial. See KRS 452.210. See also KRS 452.220, as to application by the state or the defendant as to change of venue, and how made and determined. KRS 452.230 relates to a change of venue where the circuit judge believes that a state of lawlessness exists in his county or that a high state of excitement or feeling of prejudice against a defendant exists, etc. Under KRS 452.280, the court to which the action is removed shall have the same jurisdiction to dispose of the case as the court from which it was removed.
KRS 452.340(1) provided that if a change of venue is granted to or on application of the state, all the costs of the removal shall be paid by the county from which the action is removed. That related to fees of officers, which, it could be argued, was broad enough to cover jailer fees. However, KRS 452.340 was expressly repealed by Acts 1976 (Ex. Sess.) Ch. 14, § 491, effective January 2, 1978.
CONCLUSION
In view of the fact that the statutes make no special provisions for the payment of jail expenses of prisoners moved from one county to another under a change of venue, it is our opinion that where the trial, under change of venue, is moved from County A to County B, County B has no statutory basis for charging County A for the costs of incarceration while the prisoner is in the jail in County B. Since the prisoner, under a change of venue, is being held in County B by orders of the court in County B, as provided in KRS 441.006(1), the fiscal court of County B is responsible for the jail costs while the prisoner is detained in that jail.
If you feel that result is not equitable, you should address that problem to the General Assembly.
In the absence of an amendment of KRS 441.006(1), we must accept that statute as it is written. It is clear and unambiguous. In addition, the court wrote in
Thompson v. Piasta, Ky.App., 662 S.W.2d 223 (1983) 226, that "where no exception is made to positive statutory terms, the presumption is the legislature intended to make none." (Emphasis added).
It may be noted by way of dramatic contrast that, under KRS 441.030, where there is no jail in County A or the jail there is insecure, or there is danger or probable danger that the defendants incarcerated under any order of the court will be removed from the jail by violence, the circuit judge of County A shall by an order of record direct that such prisoners be transferred to County B, the nearest county in which the jail is secure. However, in that situation, the circuit judge of County A is ordering such prisoners to be held in County B. Thus the fiscal court of County A is responsible for the jail costs occasioned by the jailer in County B, pursuant to KRS 441.006(1), in terms of the ordering judge.