Request By:
Sara Boswell Dent
Opinion
Opinion By: A. B. Chandler III, Attorney General; Ross T. Carter, Manager of the Opinions Branch
Opinion of the Attorney General
KRS 64.090 was amended in 1996 to increase the sheriff's fee for executing and returning process from $ 10 to $ 20. That change has prompted the following questions:
1. Is a sheriff entitled to a $ 10 fee for "serving process or arresting the party in misdemeanor cases" or a $ 20 fee for the "execution and return of process" when making an arrest on a bench warrant? Or for serving a criminal summons?
2. Would the sheriff be entitled to an arrest fee of $ 10 under KRS 64.060 only (to be paid by the Finance Cabinet upon submission by the sheriff if the arrest was made pursuant to an indictment) or a fee of $ 20 for "executing and returning process" under KRS 64.090?
3. What is the fee for serving a criminal summons in a felony case?
4. What are the types of process upon which the sheriff is entitled to the new $ 20 fee for execution and return?
Process and arrest defined
Before determining the applicable fees it is necessary to understand what is meant by the terms process and arrest. Process refers to the action of compelling a person to appear before a court. Bonnie Braes Farms Inc. v Robinson, Ky App, 598 SW 2d 765 (1980). In civil actions, process is accomplished by the issuance and return of summons. CR 4.01. In criminal actions, process is accomplished by the issuance and return of either an arrest warrant or summons. RCr 2.04.
Arrest refers to the apprehension or detention of a person so that the person may be forthcoming to answer for an alleged or supposed crime. 5 Am Jur 2d, Arrest § 8 (1995). An arrest may be made pursuant to a warrant, in which case it is a component of judicial process as defined above, or without a warrant. KRS 431.005 . Warrantless arrest does not automatically initiate judicial proceedings; an officer making a warrantless arrest must without unnecessary delay take the arrested person before a judge and file a criminal complaint. RCr 3.02(2). In a warrantless arrest, there is no return of a document to court, as there is in an arrest on a warrant. RCr 2.12.
Fee for arrest and process in misdemeanor cases
For misdemeanor cases, in determining the sheriff's fee it does not matter how the defendant is brought within the court's jurisdiction. Under KRS 64.090 a single $ 10 fee applies to "serving process or arresting the party in misdemeanor cases." Whether the sheriff serves and returns a summons, or proceeds on an arrest warrant, or arrests the defendant without a warrant, the fee is $ 10.
Fee for arrest and process in felony cases
For felony cases, two statutes are implicated. The first, KRS 64.060, establishes a $ 10 fee for "apprehending a person on charge of felony, or a fugitive from justice charged with a felony in this state." The second, KRS 64.090, establishes a $ 20 fee for "executing and returning process."
When criminal process in a felony case is accomplished by execution and return of summons, the $ 20 fee applies; "process" in such a context means a summons, RCr 2.04, and the phrase "executing and returning process" precisely describes the sheriff's action.
When criminal process in a felony case is accomplished by execution and return of an arrest warrant, the $ 20 fee applies; "process" in such a context means an arrest warrant, and the phrase "executing and returning process" describes the sheriff's action with respect to the arrest warrant. It might be argued that the $ 10 fee is appropriate because that fee applies to the apprehension of a person on a felony charge. We do not agree with that conclusion because the language establishing the $ 10 fee refers only to the apprehension of an individual, and not to the return of a document to the court. The $ 20 fee provision is the only provision that refers to both execution and return of the warrant. Because an arrest warrant must be both executed and returned to the court, the language establishing the $ 20 fee more accurately describes the sheriff's action.
When a felony arrest is made without a warrant, there is no return of any document to the court. In these cases the $ 10 arrest fee applies. The sheriff has neither executed nor returned process, so he is not entitled to the $ 20 fee.
Other types of process
There are only two types of action, civil and criminal, and process in those actions is governed by the Rules of Civil Procedure and the Rules of Criminal Procedure. Therefore there are no other types of process to which the $ 20 fee applies. While there are various types of summons, such as summoning a witness, the service of those summons does not constitute the execution and return of process.