Request By:
Mr. Arnold Turner, Jr.
County Attorney Elect
South Lake Drive
Prestonsburg, Kentucky 41653
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
As County Attorney-Elect of Floyd County, you ask whether or not the county attorney has any authority to prepare affidavits, accept affidavits or issue warrants for criminal violations within the Commonwealth of Kentucky.
The issuance of a warrant of arrest is treated in RCr 2.04. The warrant is issued on probable cause by a "magistrate" (or other officer authorized to issue a warrant). A magistrate presently includes judges of the circuit, county and police courts and justices of the peace. Effective January 1, 1978, RCr 1.06 will be amended to provide that "magistrate" means a judge of the circuit or a judge or trial commissioner of the district court. A county attorney is, under RCr 1.06, an "attorney for the Commonwealth", but he has no judicial functions. We can find no statute or criminal rule authorizing a county attorney to issue a warrant of arrest.
A complaint, which is made under oath, and signed by the complaining party before a magistrate, may be drafted by the county attorney. He [county attorney] has no authority to "accept" an affidavit. The affidavit (complaint) must be sworn to before the magistrate who can issue a warrant. However, the magistrate upon receiving the complaint, must decide whether the complaint presents probable cause. If so, he issues a warrant. A complaint properly drafted and executed is a formal criminal charge. See compiler's note to RCr 2.02.
Next, you ask whether you could legally conduct a private practice in the county attorney's office in the courthouse.
First, there is no statute requiring that the county attorney's office be located in the courthouse. Thus the location of his office in the courthouse is a matter for the fiscal court to decide. If it decides to furnish an office in the courthouse, such decision would be understandably based upon the public's need for the county attorney's convenient location in immediate juxtaposition to the hub of county government and county proceedings. This is important since in many counties the district court will operate in the courthouse; and fiscal court usually holds its meetings in the courthouse. Of course the fiscal court could provide the county attorney with an office in leased private facilities. In either case, whether the public office is located in the courthouse or in a privately owned building, an equitable arrangement would be that, upon determining what a fair rental value would be for either location, the county attorney would be responsible for paying a percentage of such rental value based upon the percentage of time the property is used for his private practice. The remaining percentage of the rental would be borne by the county pursuant to KRS 15.750(4). The court has held that the county's power to sell its property includes the power to lease.