Kansas Attorney General Opinion 1992-090

ROBERT T. STEPHAN
ATTORNEY GENERAL July 7, 1992
ATTORNEY GENERAL OPINION NO. 92-90
Charles A. Peckham
Atwood City Attorney
P.O. Box 46
Atwood, Kansas 67730
Re: Crimes and Punishments; Kansas Criminal Code;
Classification of Crimes Penalties--Sentencing;
Authorized Dispositions; Probation; Costs
Minors--Kansas Juvenile Offenders Code--Authorized
Dispositions; Probation; Costs
Cities and Municipalities--Code of Procedure for
Municipal Courts; Trials and Proceedings Incident
Thereto--Sentence; Possible Disposition; Probation;
Costs; Home Rule Powers
Synopsis: A district or municipal court is precluded by
statute from assessing costs of supervision of
public service performed by a person on probation.
A city may provide for assessment of such costs by
a municipal court by charter ordinance. Cited
herein:
21-4602;
22-3801;
38-1663;
K.S.A. 12-4112; 12-4509; K.S.A. 1991 Supp.
21-4603; 21-4610; K.S.A. 21-4610a;
K.S.A. 1991 Supp. 28-170; 28-172; 28-172b;
38-1663b.

Dear Mr. Peckham:
You request our opinion regarding whether a court may order
assessment of costs of supervision of a person performing
public service while on probation. Specifically you ask:
I. may a district court, as a part of an order of
probation, order assessment of the costs of supervision of an
adult defendant while performing public service;
II. may a district court order assessment of such costs
against a juvenile offender;
III. may a municipal court order assessment of such costs
against a defendant; and
IV. may a city, by charter ordinance provide for assessment
of such costs in municipal court cases.
I. Adult Defendants in District Court.
K.S.A. 1991 Supp. 21-4603(2) provides, in part:
"(2) Except as provided in subsection
(3), whenever any person has been found
guilty of a crime, the court may adjudge
any of the following:
"(a) Commit the defendant to the custody
of the secretary of corrections or, if
confinement is for a term less than one
year, to jail for the term provided by law;
"(b) impose the fine applicable to the
offense;
"(c) release the defendant on probation
subject to such conditions as the court
may deem appropriate, including orders
requiring full or partial restitution.
In felony cases, the court may include
confinement in a county jail not to exceed
60 days, which need not be served
consecutively, as a condition of probation;

"(i) impose any appropriate combination
of (a), (b), (c), (d), (e), (f), (g) or
(h)." (Emphasis added).
K.S.A. 1991 Supp. 21-4602(3) sets forth the definition of
probation:
"(3) 'Probation' means a procedure under
which a defendant, found guilty of a crime
upon verdict or plea, is released by the
court after imposition of sentence,
without imprisonment except as provided in
felony cases, subject to conditions
imposed by the court and subject to the
supervision of the probation service of
the court. In felony cases, the court
may include confinement in a count jail
not to exceed 60 days, which need not be
served consecutively, as a condition of
probation pursuant to subsection (2)(c) of
K.S.A. 21-4603 and amendments thereto.
(Emphasis added).
K.S.A. 1991 Supp. 21-4610 provides for conditions of
probation. Subsection (1) provides a broad grant of authority
to the trial court in setting such conditions:
"(1) Except as required by subsection
(4), nothing in this section shall be
construed to limit the authority of the
court to impose or modify any general or
specific conditions of probation,
suspension of sentence or assignment to a
community correctional services program,
except that the court shall condition any
order granting probation, suspension of
sentence or assignment to a community
correctional services program on the
defendant's obedience of the laws of the
United States, the state of Kansas and any
other jurisdiction to the laws of which
the defendant may be subject."
Subsection (4) then provides:
"(4) In addition to any other conditions
of probation, suspension of sentence or
assignment to a community correctional

services program, the court shall order
the defendant to comply with each of the
following conditions:
"(a) Make reparation or restitution to
the aggrieved party for the damage or loss
caused by the defendant's crime, in an
amount and manner determined by the court
and to the person specified by the court,
unless the court finds compelling
circumstances which would render a plan of
restitution unworkable;
"(b) pay the probation or community
correctional services fee pursuant to
K.S.A. 21-4610a, and amendments thereto;
and
"(c) reimburse the state general fund for
all or a part of the expenditures by the
state board of indigents' defense services
to provide counsel and other defense
services to the defendant. In determining
the amount and method of payment of such
sum, the court shall take account of the
financial resources of the defendant and
the nature of the burden that payment of
such sum will impose. A defendant who has
been required to pay such sum and who is
not willfully in default in the payment
thereof may at any time petition the court
which sentenced the defendant to waive
payment of such sum or of any unpaid
portion thereof. If it appears to the
satisfaction of the court that payment of
the amount due will impose manifest
hardship on the defendant or the
defendant's immediate family, the court
may waive payment of all or part of the
amount due or modify the method of
payment."
The sections quoted above all seem to grant trial courts broad
discretion in ordering conditions of probation. In practice,
however, the actual application of these statutes has been
fairly narrow. For instance, in State v. Wallbridge, 248
Kan. 65, 68 (1991), the court said, "We have consistently
recognized that probation is a privilege granted by the

sentencing court and that court has broad power and authority
in imposing conditions of probation. . . ." Despite this
statement, the court went on to hold that a court could not
order a defendant to serve county jail time as a condition of
probation. 248 Kan. syl. T 3. [Wallbridge was
legislatively overruled in part by the 1991 amendments to
K.S.A. 21-4602(3) and 21-4603(2).]
In a case more directly on point, State v Jones, 11
Kan.App.2d 428 (1986), the court held that K.S.A. 21-4610 did
not grant a trial court authority to order, as restitution,
that manpower costs incurred to capture an escaped prisoner be
subject to reimbursement as a condition of parole. The court
said that allowing recovery of such costs would be similar to
allowing recovery of investigative costs, something clearly
not contemplated by the statutes. 11 Kan.App.2d at 430.
Jones stands for the proposition that "costs" are not
subject to restitution and may not be recovered absent a
specific statutory provision.
One of the limits set forth in K.S.A. 1991 Supp. 21-4610(4) is
that the court "shall order" a probation fee, pursuant to
K.S.A. 21-4610a. This section provides for specific set fees,
and contains no language which would seem to permit increasing
the fees to cover costs of supervision. Further, we note that
recovery of court costs is provided for in K.S.A. 22-3801 and
K.S.A. 1991 Supp. 28-171, 28-172a, 28-172b, none of which
include a provision for the recovery of such costs.
Based on Jones and the absence of any statutory language
specifically approving recovery of costs of supervision, it is
our opinion that a district court may not order an adult
defendant to pay costs of supervision of community service as
a condition of probation. This is consistent with our
previous opinion that district courts may not order a
defendant to pay the room and board costs incurred by the
county jailing authorities. Attorney General Opinion 84-25.
II. Juvenile Defendants in District Court.
The statutes covering disposition of juvenile offenders are
found at K.S.A. 1991 Supp. 38-1663 and 38-1663b. The Jones
rational applies equally to juvenile proceedings; such costs
are not "restitution." Absent a specific statutory grant of
authority for collection of such costs, we conclude the court
may not order the juvenile to pay them as a condition of
probation.

III. Adult Defendants in Municipal Court.
K.S.A. 12-4509 provides for dispositions in municipal cases.
It is quite similar to K.S.A. 21-4603. As such, recovery of
such sums is not "restitution" and Jones applies. Recovery
of costs is provided for in K.S.A. 12-4112 which provides:
"No person shall be assessed costs for the
administration of justice in any municipal
court case, except for witness fees and
mileage as set forth in K.S.A. 12-4411 and
amendments thereto and for the assessment
required by K.S.A. 12-4116 for the
training, testing and continuing judicial
education of municipal judges."
In a previous opinion we concluded that a municipal court had
no authority under the code of municipal procedure to order a
defendant to pay room and board costs incurred by jailing
authorities. Attorney General Opinion No. 84-25.
Absent a specific provision allowing recovery of such costs,
we are of the opinion they are not recoverable under the code
of municipal procedure.
IV. Imposition of Such Costs Pursuant to
Charter Ordinance.
In City of Junction City v. Griffen, 227 Kan. 332(1980),
the court held that the Kansas code of procedure for municipal
courts was not uniformly applicable to all cities, and that
therefore a city, by charter ordinance, could validly exempt
itself from the provisions of said code. Based on
Griffen, in a previous opinion we concluded that a city
could, by charter ordinance, exempt itself from the limits on
court costs contained in K.S.A. 12-4112. Attorney General
Opinion No. 82-161.
We are of the opinion, based on Griffen and our previous
opinion, that a city may, by charter ordinance, make recovery
of costs of supervision of defendants performing public
service on probation from municipal court a condition of
probation.
Very truly yours,
ROBERT T. STEPHAN
Attorney General of Kansas
Steve Phillips
Assistant Attorney General
RTS:JLM:SP:jm