Request By:
Hon. Jack Emory Farley
Public Advocate
Office for Public Advocacy
State Office Building Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Eileen Walsh, Assistant Attorney General
Your letter raises the question as to whether or not a county is obligated to pay for the expenses of providing legal representation to indigent persons other than the expense of defense counsel fees. You have listed the following expenses in particular:
(1) Transcripts of mistrial, trial and grand jury;
(2) Expenses of appeals other than transcripts;
(3) Expert witness fees including, but not limited to, examination by and testimony of psychologists, psychiatrists and the like;
(4) Service of process and other court costs;
(5) Investigative services;
(6) Expenses of trial such as interpreters;
(7) Other preparation and costs such as attorney travel, phone calls, copying, etc.
Chapter 31 of the Kentucky Revised Statutes establishes the Office for Public Advocacy to provide for the maintenance and operation of a state sponsored and controlled system for the representation of indigent persons accused of crimes. See KRS 31.010. This Act reflects a policy to furnish counsel and services to those unable to procure them so as to place such criminal defendants in nearly equal position with defendants who can pay.
Under KRS 31.110(1)(b) an indigent defendant is to be provided with "the necessary services and facilities of representation including investigation and other preparation. " What constitutes "necessary services" of representation will vary from case to case. KRS 31.110(1)(b) further provides that the courts in which the defendant is tried shall waive all costs. KRS 453.190 provides that an indigent person shall not have to pay court costs and further that he "shall have from all officers all needful services and process, including the preparation of necessary transcripts for appeal, without any fees."
Service of process and other court costs are to be waived for indigent defendants. KRS 31.110(1)(b). The practical effect of this is that no one is obligated to pay these expenses. The remaining expenses enumerated in your letter require a closer examination of KRS Chapter 31.
It must be noted at the outset that county obligations are not created unless expressly authorized by statute. Hazelip v. Fiscal Court of Edmonson County, 228 Ky. 80, 14 S.W.2d 398 (1929). Similarly, the Commonwealth is not liable for costs except where there is an express statute making the state liable therefor, KRS 453.010.
Under KRS 31.060 each county with a judicial district containing ten (10) or more circuit judges must establish and maintain an office of district public advocacy and must submit a plan for the operation thereof to the state office for public advocacy. At present KRS 31.060 only applies to Jefferson County, Kentucky. If the submitted plan is approved the state office of public advocacy will grant the county [Jefferson County] a sum of money for the purpose of assisting said plan. Under KRS 31.060 the county is obligated for all costs incurred in the operation of the indigent program which are in excess of the state contribution. Therefore, presently Jefferson County is obligated to pay all "necessary expenses" incurred in the defense of indigent defendants that are in excess of the state contribution.
As to all the remaining counties KRS 31.160 applies. It provides that the fiscal court of the county may elect to provide for the representation of indigent defendants by selecting a public defender program under that statute. Such commitment is permissive, but when a county selects a public defender program under that statute, it is committed for that particular fiscal year. This commitment is on a year by year basis. See 504 KAR 1:020, Sections 1 and 2. If a county selects a public defender program under KRS 31.160 then under KRS 31.190 and 31.200 it is to appropriate enough money to administer its particular program of representation and to cover the costs that are necessarily incurred in the representation of indigent defendants. An exception is made in regard to expenses incurred in the representation of indigents confined in a state correctional institution. Under KRS 31.200 these expenses are to be borne by the state office for public advocacy. Therefore, a county which elects to provide an indigent representation plan under KRS 31.160 has the obligation to pay for such expenses as enumerated in your letter if the expenses are found to be "necessary expenses" of representation.
If a county does not elect to provide one of the plans set forth in KRS 31.160 then it would appear to be the obligation of the state to provide a district public advocate to that county and further the obligation of the state to bear the cost of the program. KRS 31.160(1)(e).