Request By:
Mr. Waylon Rogers
Caldwell County Sheriff
Room 5, Courthouse
Princeton, Kentucky 42445
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your question reads:
"What fee is the sheriff allowed to charge and collect for serving subpoenas to witnesses to testify for the defendant in criminal cases?"
The sheriff's fees in criminal cases are provided in KRS 24A.140(1) & (2) and 64.090. KRS 24A.140(2), in connection with the district court, simply states that the sheriff shall be compensated for these services in the same manner and at the same rates as for similar services rendered to the circuit court. KRS 64.090 contains an express fee schedule pertaining to the sheriff.
The sheriff's collection of fees in a criminal case is conditioned upon the conviction of the defendant and his payment of the fee to the court clerk. Bell County v. Minton, 239 Ky. 840, 40 S.W.2d 379 (1931). See also RCr 7.02, KRS 453.020 and KRS 64.340.
Under KRS 64.090, the fee for summoning each witness is $2.00. See E. H. Taylor & Sons v. Thornton, 178 Ky. 463, 199 S.W. 40 (1917) 43. In that case a subpoena was defined as the process by which the attendance of a witness is required. It is a writ directed to the sheriff requiring him to summon the person named to attend at a particular time and place, to testify as a witness. See also 97 C.J.S., Witnesses, § 20, p.p. 370-371. Here we are speaking of a subpoena ad testificandum, requiring the party to be served to appear before court to testify for the party named under a penalty therein mentioned. See RCr 7.02(1), requiring the clerk of the court to issue subpoenas. It is issued in the name of the court. RCr 7.02 relates to the power to subpoena witnesses before the court.
The Commonwealth is not liable for costs in criminal actions. KRS 453.010. The defendant, as we said, in a criminal action is required to pay the costs accruing in the event of his conviction. KRS 453.020. He is relieved of that burden in the event he is allowed to proceed in forma pauperis. KRS 453.190. Further, the prosecution has no responsibility to secure witnesses for a defendant in a criminal case or to pay the expenses involved. Sykes v. Com., Ky., 553 S.W.2d 44 (1977) 46.
In this whole matter, we must face the pragmatic premise that no officer is entitled to demand or receive for the performance of his public duties more than is authorized by law. Webster County v. Nance, Ky., 362 S.W.2d 723 (1962).
CONCLUSION
(1) The sheriff is allowed a fee of two dollars ($2.00) for serving a subpoena on a witness for defendant in a criminal case, pursuant to KRS 64.090.
(2) The sheriff's collection of such fee is conditioned upon the conviction of the defendant and his payment of the fee to the court clerk.