Opinion Number ( 1997 )

Dear Ms. Prieto:

Your request for an Attorney General's opinion has been forwarded to me for research and reply. In particular, you asked the following question:

What action may a clerk of court's office take, in a forfeiture proceeding, to ensure payment of court costs, pursuant to LSA R.S. 40:2616?

The provision at issue is LSA R.S. 40:2616 (B)(2). This particular subsection provides the clerk of court an opportunity to collect court costs. The provision must be read within the context of the entire forfeiture act. Additionally, there are other applicable provisions to be considered.

LSA R.S. 40:2616 (B) is invoked only where there is a claimant contesting the forfeiture proceedings. The clerk of court may collect the costs incurred in the proceeding if the presiding judge casts the claimant with those costs after the satisfaction of any bona fide security interest or lien. See LSA R.S. 2616 (B)(1). Furthermore, the allotted costs would reasonably come from the bond that the claimant must file along with his answer pursuant to LSA R.S. 2612 (E). If the claimant is not cast with the court costs, neither the State nor any political subdivision is liable for payment pursuant to LSA R.S.13:4521. This provision exempts the State of Louisiana and all of its political subdivisions from the payment of court costs.

If the claimant fails to file his answer and bond within the specified time or not at all, a default judgment is entered. In these instances, the proceedings are "in rem".

Therefore, without an appropriate answer by the claimant, there is no litigant to whom the presiding judge may allot court costs.

It is the opinion of this office that the clerk of court is entitled to payment of court costs incurred in forfeiture proceedings only in those instances where a bond has been filed by the claimant and the claimant has been ordered to pay the court costs. In those cases, the District Attorney's office shall distribute the funds at issue pursuant to the order of priority set forth in LSA R.S. 40:2616 (B). Absent the filing of a bond in a contested matter, the clerk of court's office shall have no recourse against the District Attorney's office.

I hope the foregoing has adequately answered your questions. If our office can be of further assistance, please contact us. With kindest regards, I remain

Very truly yours

RICHARD P. IEYOUB Attorney General

BY: __________________________ KATHLEEN PETERSEN Assistant Attorney General