Request By:
Mr. John E. Bouvier
Daviess County Sheriff
Courthouse
Owensboro, Kentucky 42301
Opinion
Opinion By: Frederic J. Cowan, Attorney General; William B. Pettus, Assistant Attorney General
This is in response to your letter dated August 31, 1990, to this office concerning whether the Daviess County Sheriff's Department is entitled to reimbursement for expenses incurred by two employees in returning a fugitive from Texas to Kentucky to stand trial for a misdemeanor offense. Your letter with enclosures was received by this office on September 7, 1990.
Your letter contains a detailed recitation of the facts and circumstances of this matter. The essential facts are that an individual was charged with several criminal offenses in Daviess District Court and was thereafter released from custody by Court Order upon the condition that she subsequently appear before the Court. This individual failed to appear at the specified time and place specified by the Court and was charged with the misdemeanor offense of bail jumping second degree. This individual was eventually located in Iowa and formal extradition proceedings were initiated, but the fugitive fled Iowa before a governor's rendition warrant was served upon her. The fugitive was later located in Texas and this time she elected to waive formal extradition proceedings. An "Application For Appointment Of Officer To Return Fugitive To This State" was submitted to the county judge/executive of Daviess County and two individuals from the Daviess County Sheriff's Department were appointed as officers to return the fugitive to Kentucky. After returning to Kentucky from Texas with the fugitive, a request for reimbursement for expenses was filed with the Department of Local Government, but this request was denied due to the misdemeanor classification of the bond jumping warrant. Your letter states that the Daviess County Sheriff's Department acted pursuant to instructions from the Commonwealth Attorney's Office with knowledge that the Governor's Office would approve of this out-of-state extradition as evidenced by the prior issuance of the Governor's Rendition Warrant to Iowa. Your letter concludes by asking for an Attorney General Opinion on the issue of whether the Daviess County Sheriff's Department is entitled to compensation or reimbursement for the expenses incurred by these two employees in returning the fugitive.
OPINION OF THE ATTORNEY GENERAL
It is the opinion of this Office that under the circumstances described in your letter the Daviess County Sheriff's Department is not entitled to reimbursement from the State Treasury for transportation and other expenses incurred by the employees of the Daviess County Sheriff's Department in returning this fugitive from Texas to Kentucky. There are two statutes which expressly authorize reimbursement of expenses to the agent of the Commonwealth of Kentucky designated to return a fugitive from another state to Kentucky. These two statutes provide as follows:
When the Governor of this state makes requisition upon the Governor of another state for a fugitive from justice, the person named in the requisition as the agent of this state shall , unless a different condition is contained in his commission, be allowed as compensation from the State Treasury for his services a mileage allowance at the same rate fixed by regulations adopted by the secretary of the Finance and Administration cabinet pursuant to KRS 44.060, plus an additional sum calculated at the rate of five cents per mile for the distance he travels to and from the jail of the county designated in the proclamation to the place where the fugitive is arrested, and any other necessary expenses he pays in reclaiming and returning the fugitive . When a fugitive is to be returned to this state from a location out of state which is in excess of five hundred (500) miles from the jail to which he is to be returned, commercial air transportation may be utilized in lieu of ground transportation, unless the agent undertaking the transportation decides to utilize ground transportation. Payment for air transportation shall be in lieu of the mileage payment for ground transportation only for that portion of the journey for which air transportation is used. Ground transportation and other expenses shall be paid as authorized herein. If the agent is not given possession of the fugitive for reasons beyond the agent's control, he shall nevertheless be allowed the compensation prescribed by this section. Upon the return of the fugitive to the county in which the jail named in the proclamation is located, the person having him in charge shall go before a judge, who shall issue a mittimus to the jailer to receive the prisoner and keep him until he is discharged.
KRS 440.090. [Emphasis added.]
(1) When a person charged with commission of a felony in this state or with having been convicted of a felony here and having escaped from confinement or broken the terms of his bail, probation or parole is arrested in another state and waives extradition proceedings, the county judge of the county in which the felony was committed, or from which the escape was made, may, upon filing of a verified application by the commonwealth's attorney or county attorney setting forth the fact of waiver and making all statements required by subsection (1) or subsection (2) of KRS 440.370, enter an order designating an officer to return the fugitive to this state without benefit of any procedure incidental to extradition proceedings. Upon entry of such order the officer so designated shall be authorized to go after and return the fugitive as the agent of this state and shall receive from the state treasury the same payment for his expenses as is provided by KRS 440.090 for agents acting under requisition of the governor. Claims for reimbursement of expenses under this subsection shall be accompanied by certified copies of the verified application for appointment of the agent and the order of appointment, together with a copy of any process showing delivery of the fugitive to the jailer upon return to this state. If the agent is not given possession of the fugitive for reasons beyond the agent's control, he shall nevertheless be reimbursed as provided herein, if it is shown that prior to his appointment as agent and before departure from the state the fugitive had executed in the presence of any officer authorized to administer an oath a written waiver stating that he consents to return to this state without extradition.
KRS 440.380(1). [Emphasis added.]
KRS 440.090 is the statute which authorizes reimbursement for transportation and other expenses to the agent of the Commonwealth of Kentucky designated by the Governor of Kentucky to return a fugitive from another state to Kentucky when the Governor of Kentucky has made a requisition demand upon the Governor of the other state. This statute is not applicable to the situation described in your letter because the Governor of Kentucky did not make a rendition demand upon the Governor of Texas for the return of the fugitive. The fact that the Governor of Kentucky may have previously made a rendition demand upon the Governor of Iowa and designated these same two employees as agents for the Commonwealth of Kentucky does not make KRS 440.090 applicable. In the instant case, the fugitive was returned from Texas to Kentucky without making a rendition demand upon the Governor of Texas because the fugitive waived formal extradition proceedings and therefore the Daviess County Sheriff's Department is not entitled to reimbursement for expenses under KRS 440.090.
KRS 440.380(1) is the statute which authorizes reimbursement for officers designated by the county judge (now county judge/executive) of the county in which the felony was committed when the fugitive waives extradition proceedings. However, in order for this statute to be applicable, the offense committed by the fugitive must have been a felony . Therefore, the Department for Local Government properly denied your request for reimbursement on the grounds that KRS 440.380(1) does not authorize reimbursement for expenses incurred in the return of a fugitive charged with a misdemeanor . The fugitive referred to in your letter was charged with bail jumping in the second degree which is a Class A misdemeanor, KRS 520.080(3), and therefore the Daviess County Sheriff's Department is not entitled to reimbursement under KRS 440.380(1).
The word "felony" is used three times in KRS 440.380(1). The word "felony" has acquired a peculiar and appropriate meaning in the law which must be construed according to such meaning. KRS 446.080(4). Although statutes of this state are required to be liberally construed, this Office is of the opinion that the word "felony" is not intended to be so broadly interpreted as to include misdemeanors. If the Legislature intends for the word "felony" as used in KRS 440.380(1) to include misdemeanors, then the Legislature may amend this statute by substituting the word "crime" or the phrase "felony and misdemeanor" for the word "felony, " where it appears within KRS 440.380(1).
This Office previously opined as follows:
It is our opinion that under KRS 440.380(1) a person appointed by order of the county judge as agent of this state to return a fugitive upon waiver of extradition is not entitled to reimbursement of expenses as provided in KRS 440.090 unless the order of appointment was entered prior to the departure of the agent from this state.
OAG 63-108.
In the circumstances described in your letter, two employees of the Daviess County Sheriff's Department were designated as agents of the Commonwealth of Kentucky to return a fugitive from Texas to Kentucky by the Daviess County Judge/Executive. However, the Daviess County Judge/Executive did not have authority under KRS 440.380(1) to appoint an officer or agent of the Commonwealth of Kentucky to return a fugitive from another state to Kentucky because the fugitive had not been charged with a felony, but merely a misdemeanor. This raises the underlying issue of which state official has authority to designate an officer or agent for the Commonwealth of Kentucky to return a fugitive from another state to Kentucky when that fugitive is charged with a misdemeanor and has waived formal extradition proceedings.
This Office is of the opinion that the Governor of Kentucky is the only state official who has authority to designate an officer or agent for the Commonwealth of Kentucky to return a fugitive from another state to Kentucky when that fugitive is charged with a misdemeanor and has waived formal extradition proceedings. This Office previously opined as follows:
In the event a county judge should refuse to sign an order under KRS 440.380 in cases of waiver of extradition, the prosecuting attorney will be required to make formal application to the Governor under KRS 440.370 in order to secure the appointment of an agent who will be paid his travel expenses under KRS 440.090. This procedure accomplishes the same results as if the county judge had signed an order but consumes more time and involves more paper work.
OAG 65-149.
This Office is of the opinion that a county judge/executive is not authorized to sign an order under KRS 440.380 in cases of waiver of extradition involving a fugitive charged with a misdemeanor and, therefore, the prosecuting attorney is required to make formal application to the Governor under KRS 440.370 in order to secure the appointment of an agent who will be paid travel expenses. The Governor of the Commonwealth of Kentucky is the supreme executive of Kentucky and has the duty to ensure that the laws of the Commonwealth of Kentucky are faithfully executed. Constitution of Kentucky §§ 69 and 81. The Governor of the Commonwealth of Kentucky may appoint such persons as deemed necessary for the proper operation of the Governor's Office to perform such duties as the Governor may require. KRS 11.040(1). Also see , KRS 11.070. Therefore, in instances where the fugitive is charged with a misdemeanor offense in Kentucky and waives extradition, the prosecuting attorney is required to make formal application to the Governor of Kentucky under KRS 440.370 in order to secure the appointment of an agent who will be reimbursed for expenses incurred in making the trip.
I trust this opinion will provide some guidance to the Daviess County Sheriff's Department in order to avoid the problem encountered as described in your letter in the future.