Bill Text: GA SB352 | 2011-2012 | Regular Session | Introduced

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Bill Title: Prosecuting Attorneys; provide; probate courts, municipal courts, and courts exercising municipal court jurisdiction; process of such employment

Spectrum: Partisan Bill (Republican 1-0)

Status: (Passed) 2012-04-11 - Effective Date [SB352 Detail]

Download: Georgia-2011-SB352-Introduced.html

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12 SB352/AP

Senate Bill 352

By: Senator Crosby of the 13th

AS PASSED

A BILL TO BE ENTITLED
AN ACT

To amend Chapter 18 of Title 15 of the Official Code of Georgia Annotated, relating to prosecuting attorneys, so as to authorize district attorneys and solicitors-general to bring actions to enforce Code Section 40-6-163, relating to vehicles overtaking school buses; to provide for an acting solicitor-general of a state court in the event of the death or resignation of a solicitor-general; to provide for prosecuting attorneys in municipal courts, and courts exercising municipal court jurisdiction; to provide for the appointment, compensation, oath of office, duties, and authority of such prosecuting attorneys; to authorize the appointment of staff; to amend Chapter 32 of Title 36 of the Official Code of Georgia Annotated, relating to municipal courts, so as to provide for jurisdiction in transactions in drug objects in violation of Code Section 16-13-32; to provide for disposition of fines and the transfer of cases; to provide for related matters; to provide for an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

Chapter 18 of Title 15 of the Official Code of Georgia Annotated, relating to prosecuting attorneys, is amended by revising paragraph (5) of Code Section 15-18-6, relating to the duties of district attorneys, as follows:

"(5) To prosecute civil actions to enforce any civil penalty set forth in Code Section 40-6-163 and to prosecute or defend any other civil action in the prosecution or defense of which the state is interested, unless otherwise specially provided for;"

SECTION 2.

Said chapter is further amended by revising paragraph (4) of subsection (b) of Code Section 15-18-66, relating to duties of solicitors-general of state courts, as follows:

"(4) When authorized by law, To prosecute civil actions to enforce any civil penalty set forth in Code Section 40-6-163 and when authorized by law to prosecute or defend any civil action in the state court in the prosecution or defense of which the state is interested, unless otherwise specially provided for;"

SECTION 3.

Said chapter is further amended by adding a new Code section to read as follows:

"15-18-70.1.

(a) Upon the death or resignation of a solicitor-general, the chief assistant solicitor-general or, if there is no chief assistant solicitor-general, the assistant solicitor-general senior in time of service shall perform the duties of the deceased or resigned solicitor-general until such official's successor is appointed or elected and qualified. An assistant solicitor-general performing the duties of a deceased or resigned solicitor-general shall be compensated as provided for acting solicitor-generals in subsection (b) of Code Section 15-18-70.

(b) If there is no assistant solicitor-general available to perform the duties of the deceased or resigned solicitor-general as provided in subsection (a) of this Code section, the presiding judge may request the assistance of the district attorney of the judicial circuit in which such county is located or another solicitor-general of a state court to prosecute cases until a solicitor-general is appointed or elected and qualified as provided by subsection (b) of Code Section 15-18-60. Any such district attorney or solicitor-general who is acting pursuant to this subsection shall be reimbursed by the county governing authority for actual expenses incurred while assisting in the state court pursuant to this subsection."

SECTION 4.

Said chapter is further amended by adding a new article to read as follows:

"ARTICLE 5

15-18-90.

The provisions of this article shall apply to a municipality authorized by the provisions of Article 1 of Chapter 32 of Title 36 to establish and maintain a municipal court, including a municipality for which a county is furnishing municipal court services pursuant to a contract authorized by Article 9 of Chapter 10 of this title.

15-18-91.

(a) Subject to the provisions of this article, the governing authority of a municipality shall be authorized to create the office of prosecuting attorney of the municipal court. A copy of the resolution or ordinance creating the office of prosecuting attorney of the municipal court shall be provided to the Prosecuting Attorneys' Council of the State of Georgia.

(b) It shall be the duty of the municipal court clerk, or such other person designated by the governing authority of a municipality, to notify the Prosecuting Attorneys' Council of the State of Georgia of the name of any person appointed to be the prosecuting attorney of a municipal court within 30 days of such appointment.

(c) Unless otherwise provided by the charter of such municipality or other local law, the prosecuting attorney of the municipal court shall serve a term of office to be determined by the governing authority of such municipality.

(d) The governing authority of a municipality shall also be authorized to contract with the district attorney of the judicial circuit in which such municipality is located or the solicitor-general of the state court of the county in which such municipality is located for such officer to perform the duties of the prosecuting attorney in such municipal court. Any district attorney or solicitor-general entering into any such contract may assign such other members of his or her staff to prosecute in the municipal court.

15-18-92.

(a) Any person appointed as the prosecuting attorney of a municipal court shall be a member in good standing of the State Bar of Georgia and admitted to practice before the appellate courts of this state.

(b) Notwithstanding the provisions of subsection (a) of Code Section 15-18-21 or subsection (b) of 15-18-72, an assistant district attorney or assistant solicitor-general may be appointed as the prosecuting attorney of a municipal court with the prior written consent of the district attorney or solicitor-general who employs such assistant district attorney or assistant solicitor-general. Such consent may be withdrawn at any time by the employing district attorney or solicitor-general. Notice that consent for such appointment is being withdrawn shall be done in writing to the governing authority of such municipality not less than 30 days prior to the day that such assistant district attorney or assistant solicitor-general shall cease to serve as the prosecuting attorney of a municipal court.

15-18-93.

In addition to the oaths prescribed by Chapter 3 of Title 45, relating to official oaths, the prosecuting attorney of a municipal court shall take and subscribe to the following oath: 'I swear (or affirm) that I will well, faithfully, and impartially and without fear, favor, or affection discharge my duties as prosecuting attorney of the (City) (Town) of (here state the municipality).'

15-18-94.

(a) Unless otherwise provided by local law, the governing authority of the municipality shall determine whether the prosecuting attorney of a municipal court shall be a full-time or part-time prosecuting attorney.

(b) Any full-time prosecuting attorney of a municipal court and any full-time employees of the prosecuting attorney of a municipal court shall not engage in the private practice of law.

(c) Any part-time prosecuting attorney of a municipal court and any part-time assistant prosecuting attorney of a municipal court may engage in the private practice of law, but shall not practice in the municipal court or appear in any matter in which that prosecuting attorney has exercised jurisdiction.

15-18-95.

If the prosecuting attorney of a municipal court is disqualified from engaging in the prosecution of a particular case or is unable to perform the duties of said office due to illness or incapacity, the governing authority shall provide for the appointment of a substitute prosecuting attorney. At any time in which a substitute prosecuting attorney is not available or an appointment has not been made, the city attorney of the applicable municipality may serve as the substitute prosecuting attorney until such time as a prosecuting attorney or substitute prosecuting attorney is available or appointed.

15-18-96.

(a) The prosecuting attorney of a municipal court shall have the duty and authority to represent the municipality:

(1) In the municipal court:

(A) In the prosecution of any violation of the laws or ordinances of such municipality which is within the jurisdiction of such municipal court and punishable by confinement or a fine or both or by a civil penalty authorized by Code Section 40-6-163; and

(B) In the prosecution of any violation of state laws which by general law municipal courts have been granted jurisdiction to try and dispose of such offenses, specifically including those offenses described in Chapter 32 of Title 36 and Code Section 40-13-21;

(2) In the appeal of any case prosecuted in the municipal court to the superior court or the appellate courts of this state;

(3) In any case in which the defendant was convicted in the municipal court and is challenging such conviction through habeas corpus;

(4) To administer the oaths required by law to the bailiffs or other officers of the court and otherwise to aid the presiding judge in organizing the court as may be necessary; and

(5) To perform such other duties as are or may be required by law or ordinance or which necessarily appertain to such prosecuting attorney's office.

(b) The prosecuting attorney of a municipal court shall have the authority to:

(1) File, amend, and prosecute any citation, accusation, summons, or other form of charging instrument authorized by law for use in the municipal court;

(2) Dismiss, amend, or enter a nolle prosequi on any accusation, citation, or summons filed in the municipal court as provided by law, except that the prosecuting attorney of a municipal court shall not have the authority to dismiss or enter a nolle prosequi in any case in which the accused is charged with a violation of state law other than one which the municipal court has jurisdiction to try and dispose of such offense without the consent of the proper prosecuting officer having jurisdiction to try and dispose of such offense. As used in this paragraph, the term 'proper prosecuting officer' means, in the case of felonies, the district attorney and, in the case of misdemeanors, the solicitor-general in counties where there is a state court, or in counties where there is no solicitor-general, the district attorney;

(3) Reduce to judgment any fine, forfeiture, or restitution imposed by the municipal court as part of a sentence in an ordinance case or forfeiture of a recognizance which is not paid in accordance with the order of the court. A prosecuting attorney of a municipal court may institute such civil action in the courts of this state or of the United States or any of the several states to enforce such judgment against the property of the defendant; and

(4) Request and utilize the assistance of any other municipal prosecutor, solicitor-general, assistant solicitor-general, district attorney, assistant district attorney, or other attorney employed by an agency of this state or its political subdivisions or authorities in the prosecution of any criminal action.

(c) The provisions of this Code section shall not be deemed to restrict, limit, or diminish any authority or power of the district attorney or any solicitor-general to represent this state in any criminal case in which the accused is charged with a felony or misdemeanor, when the municipal court is acting as a court of inquiry pursuant to Article 2 of Chapter 7 of Title 17 or setting bail for any such offense, other than one which the municipal court has, by law, jurisdiction to try and dispose of.

15-18-97.

The prosecuting attorney of a municipal court shall be compensated by the municipality as provided by local law or, in the absence of such local law, as provided by the governing authority of such municipality. The prosecuting attorney of a municipal court shall be entitled to be reimbursed for actual expenses incurred in the performance of his or her official duties in the same manner and rate as other municipal employees.

15-18-98.

The prosecuting attorney of a municipal court may employ such additional assistant prosecuting attorneys and other employees or independent contractors as may be provided for by local law or as may be authorized by the governing authority of the municipality. The prosecuting attorney of a municipal court shall define the duties and fix the title of any attorney or other employee of the prosecuting attorney's office. Personnel employed pursuant to this Code section shall be compensated by the municipality.

15-18-99.

Any assistant prosecuting attorney or other attorney at law employed by the municipality for the purposes of prosecuting in the municipal court shall be a member in good standing of the State Bar of Georgia or satisfy the provisions of Code Section 15-18-22."

SECTION 5.

Chapter 32 of Title 36 of the Official Code of Georgia Annotated, relating to municipal courts, is amended by adding a new Code section to read as follows:

"36-32-6.1.

(a) The municipal court of any municipality shall be granted jurisdiction to try and dispose of cases where a person is charged with transactions in drug related objects in violation of Code Section 16-13-32 if the offense occurred within the corporate limits of such municipality. The jurisdiction of any such court shall be concurrent with the jurisdiction of any other courts within the county having jurisdiction to try and dispose of such cases.

(b) Any fines arising from the prosecution of such cases shall be retained by the municipality and shall be paid into the treasury of such municipality.

(c) Any defendant charged with transactions in drug related objects in violation of Code Section 16-13-32 in a municipal court shall be entitled, upon request, to have the case against him or her transferred to the court having general misdemeanor jurisdiction in the county where the alleged offense occurred.

(d) Nothing in this Code section shall be construed to give any municipality the right to impose a fine or punish by imprisonment in excess of the limits as set forth in the municipality's charter."

SECTION 6.

This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 7.

All laws and parts of laws in conflict with this Act are repealed.