Request By:
Mr. Hiram Brock, Jr.
City Attorney
Court and Second Streets
P.O. Box 591
Harlan, Kentucky 40831
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your problem was stated as follows:
"A citizen secures from the District Judge a warrant charging another citizen with a misdemeanor of some sort. After securing the issuance of the warrant from the District Judge, the complaining party delivers the warrant to the hands of a peace officer and almost without exceptions the peace officer demands the prepayment of ten dollars ($10) before accepting and serving the warrant process."
KRS 64.090 provides a fee of $10.00 to the sheriff for serving a warrant in a misdemeanor case. This fee may be paid to some other peace officer where a statute so provides. However that statute makes no provisions for the advance payment of such fee by the complaining party or any-one else. Cf. KRS 64.080, which provides that generally no officer shall be required to execute any process in a civil case until the party has deposited with the clerk of the court a sum not to exceed five dollars ($5.00), as an advancement on the fee for serving process. There is no similar statute covering the service of criminal process.
Moreoever, the sheriff or any officer permitted to serve such process shall be ultimately entitled to the fee only if: (1) the defendant is convicted of a misdemeanor; and (2) the defendant pays over such costs to the clerk. See KRS 64.340.
It is our opinion that a sheriff, deputy sheriff, or any other peace officer entitled by statute to the fee for serving criminal process, cannot legally demand or require the complaining party to pay the fee in advance of the serving of the process. Even after it is served, we have outlined above the conditions under which the serving officer may be paid.