Request By:
Hon. Larry J. Crigler
County Attorney, Boone County
P.O. Box 114
Burlington, Kentucky 41005
Opinion
Opinion By: Steven L. Beshear, Attorney General; James H. Barr, Assistant Attorney General
This is in response to your recent request for a clarification of who is authorized under the Rules of Criminal Procedure and the applicable statutes to execute on a lien imposed on real property serving as security for a bail bond when the court has ordered the bond to be forfeited.
Under KRS 431.535(3), (4), and (5), it is prescribed that if a bail bond is secured by real estate, the defendant or his sureties shall file a schedule containing a detailed description of the property and stating that the real estate is security for the conditions of release imposed by the court. In this section and in RCr 4.36, it is stated that such a pledge of real estate is to be recorded by the county court clerk as a lien of the Commonwealth.
KRS 431.545(1) states that if the defendant willfully fails to comply with the conditions of the bail bond, the court may order a forfeiture. If such a forfeiture is declared and a lien on real estate is involved, RCr 4.48 (4) requires that the notice of forfeiture be sent to the county clerk.
It is the prescribed duty of the sheriff or his deputy, under KRS 70.075, to attend the clerk's office daily - except Sundays - to receive any process that may be issued, and the clerk shall deliver to him any such process. KRS 70.070 requires the sheriff to execute and return all notices and processes which come to him and which may be lawfully executed by him against any person or property in his county. This section further requires the sheriff to "return the time of service of each notice and process, and the time of the levy of each execution, what levied on, when he sold the property seized, whom to and what for, and all other matters touching his duty . . .". KRS Chapter 426 contains the procedural requirements for the sheriff to follow in executing against property, including advertising for sale of the property in order to satisfy outstanding liens. Additionally, KRS 70.090 requires the sheriff to collect and account for all fines and forfeitures listed with him and payable in his county.
Therefore, based on these general provisions, we conclude that the sheriff of the county in which the real property is situated is the appropriate official to execute against such property.
If our office can be of further assistance to you in the future, please do not hesitate to contact us.