OAG 78-781 | KOGC

Request By:

Mr. James Hite Hays
Shelby County Attorney
501 Main Street
Courthouse
Shelbyville, Kentucky 40065

Opinion

Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General

In your letter you ask who has the duty to draft the affidavit for a warrant of arrest and the actual warrant?

Since the county attorney must prosecute criminal matters in district court, the duty of the county attorney to draft the affidavit and warrant is implicitly his. KRS 15.725(2).

You ask who prosecutes mental incompetency cases under KRS Chapter 202A, involving involuntary hospitalization?

The seven-day commitment procedure under KRS 202A.040 and 202A.050 may be conducted by a judge of the circuit or district court. The 60-day and 360-day procedure must be conducted by the appropriate circuit court. KRS 202A.070 and 202A.080. Thus where the seven-day commitment procedure is conducted by district court, the county attorney must represent the interest of the Commonwealth and assist the court in its inquiry by presentation of evidence. KRS 202A.085. Where the circuit court conducts a procedure under this chapter, the commonwealth's attorney must represent the Commonwealth. See OAG 78-650, copy enclosed.

You ask who must prepare the petition for incompetency and orders of court?

Neither the commonwealth's attorney nor county attorney has the responsibility to act as counsel or legal representative for the petitioning party. Neither is required to prosecute such cases which are civil in nature and are non-aversary in form. The drawing of a petition is the responsibility of petitioner's attorney. The district court can ask the county attorney to draft an order in a particular case before it.

LLM Summary

The decision addresses several questions posed by the Shelby County Attorney regarding the responsibilities in drafting affidavits and warrants for arrest, and the roles of the county attorney and commonwealth's attorney in mental incompetency cases involving involuntary hospitalization. It clarifies that the county attorney is responsible for drafting affidavits and warrants due to their role in prosecuting criminal matters in district court. It also explains the representation responsibilities in mental incompetency cases, specifying that the county attorney represents the Commonwealth in district court procedures, while the commonwealth's attorney does so in circuit court procedures. The decision also notes that neither attorney is responsible for acting as counsel for the petitioning party in these civil, non-adversarial cases.

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