Opinion No. ( 1988 )

The Honorable Nick Wilson State Senator P. O. Box 525 Pocahontas, Arkansas 72455

Dear Senator Wilson:

This is in response to your request for an opinion on the following questions:

(1). Do Ark. Stat. Ann. 12-1710.2, 12-1710.3, and 1-305 apply when a prosecuting attorney files a criminal action in Circuit Court?

(2). Also, as to witness fees in criminal cases, does Rule 45 of the Court Rules supersede Ark. Stat. Ann. 28-524?

Ark. Stat. Ann. 12-1710.2, 12-1710.3, and 1-305, now codified as Arkansas Code of 1987 Annotated 21-6-403, 21-6-404, and 1-2-306, respectively, establish fees to be charged by the clerks of the circuit courts. A.C.A. 21-6-403(a)(1) provides for a $20 fee for "initiating a cause of action" in each circuit court in the state.21-6-404 provides for an additional $20 fee "for initiating any cause of action in the circuit . . . court." 1-2-306 requires the levy and collection of an additional 25¢ to be paid by the defendant "upon conviction or plea of guilty in each felony or misdemeanor case in each circuit court . . . in this state."

It may be concluded that these provisions apply to criminal proceedings in circuit court. The Arkansas Supreme Court has indicated that the phrase "cause of action" as it appears in A.C.A. 21-6-403 means "a case." See Neeley v. Barber, 288 Ark. 384,386, 706 S.W.2d 358 (1986).

A.C.A. 16-92-105, which addresses liability for costs and fees in criminal cases, should also be noted in this regard. 16-92-105 states:

(a) Fees allowed in criminal cases shall be paid by the defendant; but if sufficient property belonging to the defendant cannot be found for that purpose, they shall be paid by the county where the conviction is had, except in cases of misdemeanors, when the county shall not be liable.

(b) In all criminal or penal cases pending under indictment in the circuit courts, if the defendant shall be acquitted or if nolle prosequi shall be entered by the prosecuting attorney, except in cases where the prosecutor shall be adjudged to pay the costs, or, in cases of felony, if the defendant shall be convicted and shall not have the property to pay the costs, the costs shall be paid by the county.

(c) The county shall not be liable for costs when the defendant is convicted until execution shall have been issued against the property of the convict and returned unsatisfied for the want of property to satisfy the costs; unless the court in which the trial was had shall certify that, in the opinion of the court, the costs cannot be made out of the property of the defendant.

(d) Whenever the county shall be liable to pay the costs and expenses in criminal cases, the circuit court for the county in which the case was tried shall adjust the costs and expenses and cause them to be certified to the county court. See also A.C.A. 16-92-101, 16-92-102.

I assume that your second question is asked in relation to Rule 45 of the Arkansas Rules of Civil Procedure. The answer to this question is no. Rule 45 governs procedure in suits or actions of a civil nature. See ARCP 1. Ark. Stat. Ann. 28-524, which has been recodified as A.C.A. 16-43-801, prescribes, inter alia, compensation for witnesses in criminal cases. 16-43-801(2) states:

Witnesses shall be allowed compensation as follows:

(2) For attendance in criminal cases, five dollars ($5.00) per day.

It is therefore my opinion that ARCP 45 does not supercede A.C.A.16-43-801 with respect to witness fees in criminal cases.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.