FEE UPON UNSUCCESSFUL ATTEMPT TO SERVE ARREST WARRANT

OFFICES AND OFFICERS ‑- COUNTY ‑- SHERIFF ‑- ARREST ‑- FEES ‑- FEE UPON UNSUCCESSFUL ATTEMPT TO SERVE ARREST WARRANT

Where a county sheriff makes one or more unsuccessful attempts to serve (or execute) an arrest warrant which is later cancelled or expires without having been successfully executed, and the sheriff makes a return of "not found" in order to show his efforts to execute the warrant, the sheriff is then entitled to a fee of five dollars "for making a return" plus a mileage fee, as provided for in RCW 36.18.040.

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                                                              September 21, 1984 

Honorable Jeffrey C. Sullivan
Prosecuting Attorney
Yakima County
329 County Courthouse
Yakima, WA 98901

  Cite as:  AGO 1984 No. 24                                                                                                               

 Dear Sir:

             By letter previously acknowledged you requested our opinion on a question which we paraphrase as follows:

            Is a county sheriff entitled to the fee provided by RCW 36.18.040 for "making a return," when the sheriff makes one or more unsuccessful attempts to serve (or execute) an arrest warrant which is later cancelled or expires without having been successfully executed?

             We answer this question in the affirmative with the qualification, and for the reasons, outlined in our analysis below.

                                                                      ANALYSIS

             RCW 36.18.040 prescribes the fees which a county sheriff is entitled to collect for official services.  The relevant portions of that statute read as follows:

             "Sheriffs shall collect the following fees for their official services: . . .

              [[Orig. Op. Page 2]]

"For making a return, besides mileage actually traveled, five dollars;

             ". . .

             "For serving an arrest warrant in any action or proceeding, besides mileage, fifteen dollars;

             ". . .

             "For each mile actually and necessarily traveled by him in going to or returning from any place of service, or attempted service, twenty-five cents;

             ". . .

             "Fees allowable under this section may be recovered by the prevailing party incurring the same as court costs."

             We understand that the various counties have arrived at differing interpretations of the foregoing language as it relates to fees payable to a county sheriff in connection with the service of an arrest warrant.  In those cases in which a sheriff successfully serves, or executes,1/ an arrest warrant the statute clearly entitles the sheriff to a fifteen dollar fee plus mileage at the statutory rate.  It is less clear whether, and under what circumstances, a sheriff is entitled to collect a fee for an unsuccessful attempt to serve an arrest warrant‑-especially where the warrant expires or is cancelled or withdrawn before service is accomplished.  And that is the subject of this opinion.

              [[Orig. Op. Page 3]]

            In response to our request for clarification following receipt of your request you explained what the terms "cancelled" and "expired" warrants mean‑-at least in your county.  In the typical case, the district court issues a warrant of arrest pursuant to Justice Court Criminal Rule 2.02.2/ As required by Justice Court Criminal Rule 2.02(c)(1), the warrant describes the offense charged against the defendant and directs the sheriff and other peace officers to arrest the person named in the warrant.

             In some cases, we note again, the sheriff or other peace officer executes the warrant by making the arrest and brings the defendant before the court.  And in those cases, as we have said, the sheriff is clearly entitled by RCW 36.18.040 to a fee of fifteen dollars plus mileage.  In other cases, however, the warrant is "cancelled" by order of the court which issued the warrant.  See Justice Court Criminal Rule 2.02(e) which provides that ". . . the judge for reasonable cause can also order that the warrant be returned to him."  We understand typical reasons for the cancellation of warrants are a voluntary appearance in court by the defendant before arrest or a dismissal by the prosecutor of the criminal action giving rise to the issuance of the arrest warrant.

             In still other cases, the arrest warrant remains outstanding because the sheriff or other peace officers are unsuccessful in accomplishing an arrest, until after the applicable statutory period of limitation expires.  In such cases the court has presumably lost jurisdiction over the action and the arrest warrant is no longer valid.

             It is axiomatic, of course, that a sheriff is not entitled to the statutory fee of fifteen dollars for serving an arrest warrant where he fails to accomplish service.  We also conclude, however, that in those cases in which a sheriff makes one or more unsuccessful attempts to serve an arrest warrant and makes a return so indicating, the sheriff is entitled to the fee set forth in  [[Orig. Op. Page 4]] RCW 36.18.040 for "making a return . . ."; namely, five dollars besides the fee for mileage actually traveled.

             Our courts have not often been called upon to define the term "return" as used in statutes like RCW 36.18.040.  An early case defines the term as follows:

             ". . . A return, in legal parliance, is a statement in writing, made by a ministerial officer, of the manner in which he has executed a process placed in his hands for execution. . . ."  Strandberg v. Stringer, 125 Wash. 358, 216 Pac. 25 (1923).

 Similarly, Black's Law Dictionary defines a return as:

             ". . .

             "The act of a sheriff, constable, marshall or other ministerial officer, in delivering back to the court a writ, notice, process or other paper, which he was required to serve or execute, with a brief account of his doings under the mandate, the time and mode of service or execution, or his failure to accomplish it, as the case may be.  Also, the indorsement made by the officer upon the writ or other paper, stating what he has done under it, the time and mode of service, etc. . . ."  [Emphasis ours]

             Superior Court Criminal Rule 2.2(e) and Justice Court Criminal Rule 2.02(e) both provide that ". . . the officer executing a warrant shall make return thereof to the court before whom the defendant is brought . . ."  While neither rule explicitly requires the sheriff or other officer to make a return in cases in which execution of the warrant has not been accomplished, neither do the rules preclude the making of a return in such cases.  Indeed, we can easily imagine that prosecutors might request sheriffs and other peace officers to make returns showing their efforts to execute arrest warrants, in order to show that the state is not violating the "speedy trial" rights of the defendant under provisions of the state and federal constitutions.  In turn, since a sheriff is entitled (perhaps even expected) to make a return concerning his efforts to execute an arrest warrant‑-even if those efforts are unsuccessful‑-we believe that the sheriff is entitled to the fee prescribed by RCW 36.18.040 for making such a return.

              [[Orig. Op. Page 5]]

            Our conclusion on that count is further supported by the history of the provision in question, which was extensively changed in 1981.  Before then, RCW 36.18.040 contained two separate provisions for fees where the sheriff "made a return."  The first provision read as follows:

             ". . .

             "For making a return of 'not found' in the county upon a summons, besides mileage actually traveled, two dollars;

             ". . ."

             A later provision then read:

             ". . .

             "For the making of any return for which no other fee is provided herein, three dollars and fifty cents;

             ". . ."

             By § 1, chapter 194, Laws of 1981, however, the legislature completely eliminated the second provision, and it also eliminated the modifying language ". . . of 'not found' in the county upon a summons . . ." from the first provision.  The effect of that legislation was to convert the first of the two sentences from a provision relating only to returns of "not found" and relating only to summons into a general provision relating to the making of any return.  The other provision, which had related to the making of returns in cases otherwise not specified, became surplusage and was eliminated.

             Other changes made by the 1981 legislature consisted of increasing the fees collectable by the sheriff in each of the categories described.  One evident legislative purpose behind its amendment of RCW 36.18.040 was thus to provide sheriffs' offices with compensation for each of the many acts they are called upon to perform.  In turn, as above explained, one of those acts may involve a return of "not found" in the case of arrest warrants and other process.  And, you inform us, it is the practice of your county sheriff to make a return in such cases.

             We therefore conclude that the sheriff is, in such a case, entitled to collect the five dollar fee for "making a return" each time he returns the warrant to the issuing court‑-with an  [[Orig. Op. Page 6]] endorsement thereon describing his unsuccessful efforts to execute the warrant‑-or each time he issues a separate document denominated a "return" and describing such efforts.

             We trust the foregoing will be of assistance to you.

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General

JAMES K. PHARRIS
Senior Assistant
Attorney General