Request By:
Hon. John H. Golden
Bell County Attorney
Post Office Box 220
Pineville, Kentucky 40977
Opinion
Opinion By: Steven L. Beshear, Attorney General; Joe Johnson, Assistant Attorney General
In your recent letter to this office you asked whether the Good Behavior Bond still exists in Kentucky with the repeal of RCr 3.06(1) which states as follows:
If there are reasonable grounds to believe that the release of a defendant would endanger persons or property, the magistrate shall require bail in such sum and for such period of time as is authorized by law, to keep the peace and for his good behavior.
We agree with your position that based on the case of
Lunsford v. Commonwealth, Ky., 436 S.W.2d 512 (1969), the Good Behavior Bond still exists in Kentucky. The Court there held that the repealed provisions of Sections 382 through 393 of the Criminal Code were still in effect because the legislature had attempted to repeal them under the mistaken assumption that the criminal rule replaced the statutes.
The power (that is, the jurisdiction) of a court or magistrate to take away a person's liberty is a matter of substance, and cannot originate from the judicial power to regulate practice and procedure in the courts.
. . . .
What we hold here is that [RCr 3.06] cannot serve as the source of a magistrate's authority to exact a peace bond and to jail a defendant upon his failure to post it. . . . Obviously the peace bond provisions of the Criminal Code would not have been repealed without a simultaneous reenactment except for the mistaken assumption that RCr 3.06 would fill the void. Id., at 514.
It would appear that the repeal of RCr 3.06 was merely a housekeeping measure and the Good Behavior Bond still exists in the Commonwealth.