Request By:
Hon. Sherman Dean, Jr.
Jessamine County Judge-Executive
Courthouse
Nicholasville, Kentucky 40356
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising questions concerning KRS Chapter 31. You ask whether a fiscal court is required to pay for a transcript pursuant to KRS 31.200 where the fiscal court has not elected to provide for the representation of needy persons who, with respect to serious crimes, are subject to proceedings in the county or are detained in the county by law enforcement officers, pursuant to any of the programs set forth in KRS 31.160(1)(a), (b), (c) or (d). You also ask if the provisions of KRS 31.190 and KRS 31.200 are applicable to a fiscal court which, pursuant to KRS 31.160(1)(e), has not chosen any of the alternatives set forth in KRS 31.160(1)(a), (b), (c) or (d).
KRS 31.160 provides that the fiscal court of each county (with an exception not applicable to your situation) may provide for the representation of needy persons who with respect to serious crimes are subject to proceedings in the county or are detained in the county by law enforcement officers. They may provide this representation pursuant to the plans and methods set forth in KRS 31.160(1)(a), (b), (c) or (d). KRS 31.160(1)(e) provides that, "If a county chooses none of the alternatives set forth herein, the state shall provide a district public advocate as provided by this chapter."
KRS 31.190(1) states that the fiscal court shall annually appropriate enough money to administer the program of representation that it has elected under KRS 31.160. The statute clearly requires a fiscal court to appropriate the necessary funds only after a program of representation has been selected pursuant to KRS 31.160. See Young v. Commonwealth, Ky., 585 S.W.2d 378 (1979).
KRS 31.200(1) provides in part that subject to KRS 31.190, any direct expense, including the cost of a transcript, that is necessarily incurred in representing a needy person under KRS Chapter 31, is a charge against the county on behalf of which the service is performed. This statute also imposes an obligation on the part of a county only after it has selected a program of representation pursuant to KRS 31.160.
The Court, in Hazelip v. Fiscal Court of Edmonson County, 228 Ky. 80, 14 S.W.2d 398 (1929), concluded in part that public obligations on the part of a county are not created unless expressly authorized by statute.
In OAG 80-401, copy enclosed, we said that where a county is currently committed to a public defender program pursuant to KRS 31.160 it incurs obligations and responsibilities even though it was not required to select any particular program of representation. A commitment is permissive but when a county selects a public defender program pursuant to KRS 31.160, it is committed for that particular fiscal year. The commitment is on a year-by-year basis and where a county is currently under a public defender program it would have to pay the cost of a transcript pursuant to KRS 31.190(1) and KRS 31.200(1).
If a fiscal court of a county has not elected to provide for the representation of needy persons by means of a public defender system pursuant to any of the alternatives set forth in KRS 31.160(1)(a), (b), (c) or (d), it is not required to pay for a transcript pursuant to KRS 31.200 . A fiscal court of a county is only required to appropriate funds for a public defender program after it has selected a program of representation under KRS 31.160.