COURT COSTS ‑- JURY FEES ‑- ATTORNEYS' FEES FOR INDIGENT DEFENDANTS ‑- SUPERIOR COURTS ‑- CHANGE OF VENUE ‑- LIABILITY OF COUNTIES FOR COURT COSTS ON CHANGE OF VENUE

COURT COSTS ‑- JURY FEES ‑- ATTORNEYS' FEES FOR INDIGENT DEFENDANTS ‑- SUPERIOR COURTS ‑- CHANGE OF VENUE ‑- LIABILITY OF COUNTIES FOR COURT COSTS ON CHANGE OF VENUE

Where a change of venue is granted in a criminal case from the superior court of one county to the superior court of another county, and the defendant is acquitted after trial, the costs for jurors' fees shall be paid by the county in which the trial was had.  In such a situation, where counsel is appointed by the superior court to defend an indigent defendant, the statutory fees for such counsel shall be paid by the county in which said counsel was appointed.

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                                                                  August 2, 1956

Honorable R. DeWitt Jones
Prosecuting Attorney of Clark County
301 Court House
Vancouver, Washington

                                                                                                              Cite as:  AGO 55-57 No. 307

Dear Sir:

            We are in receipt of your letter requesting the opinion of this office on a certain question which we paraphrase as follows:

            Where a change of venue is granted in a criminal case from the superior court of one county to the superior court of another county, and the defendant is acquitted after trial, which county is liable to pay jurors' fees incurred at the trial, and which county is liable to pay attorneys' fees for counsel appointed by the court to defend indigent defendants?

            We answer your question as follows:

            The jurors' fees must be paid by the county in which the trial was had.  The attorney's fees must be paid by the county in which the attorney was appointed.

                                                                     ANALYSIS

             [[Orig. Op. Page 2]]                                                           

            The pertinent statutes with regard to this inquiry are set forth as follows:                                                                            

            RCW 36.01.060

            "Each county shall be liable to pay the per diem and mileage, or other compensation in lieu thereof, to jurors of the county attending the superior court; . . ."

            RCW 10.46.200

            "No prisoner or person under bail bond who is acquitted by verdict or discharged because no indictment is found against him, or, for want of prosecution, shall be liable for any costs . . ."

            RCW 10.01.110

            "Whenever a defendant is arraigned upon the charge that he has committed a felony, and requests the court to appoint counsel to assist in his defense, and by his own oath, or by such other proof as may be required, satisfies the court that he is unable, by reason of poverty, to procure counsel, the court shall appoint counsel, not exceeding two, for such defendant, to be paid upon its order by the county in which such proceeding is had.  Compensation shall not exceed twenty-five dollars per day for each counsel, for the number of days counsel is actually employed in court upon the trial, and twenty-five dollars for services in preparing for trial or plea."

            The term "costs," within the meaning of the foregoing statutes, is generally held to include filing, judgment and jury fees.  King County v. Seattle, 195 Wash. 293.  In criminal cases, counties have no authority to pay costs except as provided by statutes.  15 C.J. 565, § 267 (D-1).

            Where a change of venue is granted in a criminal case, the county in which the crime was committed can only be held liable for costs to the county to which the cause was removed for trial by virtue of some statute.  15 C.J. 565, § 267 (D-1),Change of Venue.

             [[Orig. Op. Page 3]]

            An opinion of this office to Mr. Bertil E. Johnson, prosecuting attorney of Pierce County, under date of December 17, 1927, 27 OAG 416 [[1927 OAG 416]], held that in civil cases, expenses accruing from a trial after a change of venue must be borne by the county in which the trial is had, as the State of Washington has no statute imposing costs upon the transferring county.

            RCW 36.01.060, set forth above, appears to us to impose liability for costs upon the county wherein a case is tried.  We have considered the effect of RCW 10.46.190, 10.46.210, 10.46.220 and 10.46.230.  However, we do not believe that they apply to the situation in which a defendant is acquitted.

            In the majority of jurisdictions in the United States where counties are liable by statute for costs, the liability continues although venue is changed to another county.  But in all such jurisdictions the liability of the transferring county is based upon statutes clearly imposing it.  See 20 C.J.S. 687, § 441e.

            However, we have been unable to discover any statute in the State of Washington imposing liability for court costs upon the transferring county where a change of venue is granted and the defendant is acquitted.  Therefore, on the basis of the general rule set forth above, we feel that jurors' fees in such a case must be paid by the county in which the trial is had.  It may well be that the better rule is that followed in the majority of jurisdictions.  However, in the absence of an enactment by our legislature adopting it, we must adhere to the rule announced herein.

            With regard to attorneys' fees of counsel appointed by the superior court to defend indigent defendants, RCW 10.01.110, set forth above, places the liability for such fees upon the county in which the defendant's attorney is appointed.

            We conclude that where a change of venue is granted in a criminal case from the superior court of one county to the superior court of another county, and the defendant is acquitted after trial, the cost for jurors' fees shall be paid by the county in which the trial was had.  In such a situation, where counsel is appointed by the superior court to defend an indigent defendant, the attorneys' fees for such counsel shall be paid by the county in which the superior court appointed said counsel.

             [[Orig. Op. Page 4]]

            We hope this opinion will be of assistance to you.

Very truly yours,

DON EASTVOLD
Attorney General

DUANE S. RADLIFF
Assistant Attorney General