2021 Georgia Code
Title 15 - Courts
Chapter 18 - Prosecuting Attorneys
Article 1 - General Provisions
§ 15-18-5. Appointment of Substitute for Absent or Disqualified District Attorney

1. When a district attorney's office isdisqualified from interest or relationship to engage in a prosecution, the district attorney shall notify the Attorney General of the disqualification.Upon receipt of such notification, the Attorney General shall:
   1. Request the services of and thereafter appoint a district attorney, a solicitor-general, or a retired prosecuting attorney as provided in Code Section 15-18-30;
   2. Designate an attorney from the Department of Law; or
   3. Appoint a competent attorney to act as district attorney pro tempore in place of the district attorney.
2. A private attorney acting as district attorney pro tempore pursuant to paragraph (3) of subsection (a) of this Code section is subject to all laws and regulations established pursuant to Code Section 15-18-19 governing district attorneys.Such private attorneyshall receive the same compensation from state funds appropriated for the operations of the district attorneys at the same rate as the district attorney during the term of such appointment and shall incur the same penalties in the discharge of the duties of said office.
3. Nothing in this Code section shall affect Code Section 45-15-30.
4. The appointment of the district attorney pro tempore shall specify in writing the court or courts to which the appointment applies, the county or counties where located, the time period covered, and the name of the case or cases to which such appointment shall apply.A copy of the appointment shall be filed with the clerk of court and copies shall be provided to the presiding judge and the Prosecuting Attorneys' Council of the State of Georgia and opposing counsel in any action affected by such order.An order appointing a private attorney pursuant to this Code section shall also specify whether such attorney will serve on a full-time or part-time basis and any restrictions which may apply to such attorney's private practice of law during the term of such appointment. Private attorneys who serve on a part-time basis shall be compensated at an hourly rate determined by the Prosecuting Attorneys' Council of the State of Georgia based on the annual salary of district attorneys paid from state funds.The Prosecuting Attorneys' Council of the State of Georgia shall establish such procedures or guidelines as may be necessary to ensure proper accountability of any funds paid to a private attorney pursuant to this Code section.
5. A district attorney or solicitor-general who is designated as a district attorney pro tempore, or any assistant designated by such district attorney pro tempore to prosecute such case or cases, or an employee of the Department of Law shall not receive any additional compensation for such services.The actual expenses incurred by the district attorney pro tempore or members of the district attorney pro tempore's staff shall be reimbursed in the same manner and by the same funding source as is provided by law for such personnel when they are performing official duties, provided that, in the case of nonstate paid personnel, the actual expenses incurred shall be reimbursed by the county in which the saiddistrict attorney pro tempore is acting at the same rate as provided in Code Section 15-18-12 for district attorneys.Any court costs, filing costs, witness fees, costs of reporting and preparing transcripts of records, and any other expenses incurred for such services shall be paid as provided by law.
6. If a disqualified district attorney fails or refuses to notify the Attorney General as provided in subsection (a) of this Code section, the presiding judge may notify the Attorney General.
7. Any order entered by a court disqualifying a district attorney's office from engaging in the prosecution shall specify the legal basis for such order.The district attorney may, on behalf of the state and prior to the defendant in a criminal case being put in jeopardy, apply for a certificate of immediate review as provided in Code Section 5-7-2, and such order shall be subject to appellate review as provided in Chapter 7 of Title 5.

(Laws 1799, Cobb's 1851 Digest, p. 574; Code 1863, §§ 358, 359; Code 1868, §§ 419, 420; Code 1873, §§ 384, 385; Code 1882, §§ 384, 385; Civil Code 1895, § 4395; Penal Code 1895, §§ 805, 806; Civil Code 1910, § 4929; Penal Code 1910, §§ 805, 806; Code 1933, §§ 24-2913, 24-2914; Ga. L. 1977, p. 1257, § 7; Ga. L. 2002, p. 1211, § 1.)

- For article, "Criminal Procedure: Crime Victims' Bill of Rights,” see 35 Ga. St. U.L. Rev. 31 (2018).

- Pursuant to Code Section 28-9-5, in 2002, "full-time" was substituted for "full" in the third sentence of subsection (d).

JUDICIAL DECISIONS

Illness may cause district attorney to be absent.

- Sickness or any other malady, bodily or mental, may cause the solicitor general (now district attorney) to be absent. Mitchell v. State, 22 Ga. 211, 68 Am. Dec. 493 (1857); Butts v. State, 90 Ga. 450, 16 S.E. 96 (1892).

City court judge may appoint solicitor (now district attorney) pro tem. Horton v. State, 11 Ga. App. 33, 74 S.E. 559 (1912); Holt v. State, 11 Ga. App. 34, 74 S.E. 560 (1912).

- Discretion of the court in appointing a solicitor general (now district attorney) pro tem will not be interfered with unless the court's discretion is abused. Statham v. State, 41 Ga. 507 (1871).

Propriety of appointment is largely in discretion of trial court and the appellate courts will not interfere with the discretion unless the court's discretion is abused. Mach v. State, 109 Ga. App. 154, 135 S.E.2d 467 (1964).

- When appointment is made, appointee is officer de facto for any official purpose, and the appointee's acts are legal, even if there be some error in the appointment. Mach v. State, 109 Ga. App. 154, 135 S.E.2d 467 (1964).

- Attorney General or members of the attorney's staff did not act as a "district attorney pro tempore" subject to a grand jury's investigation when under requisition of the governor to serve as a state prosecutor. In re Floyd County Grand Jury Presentments for May Term 1996, 225 Ga. App. 705, 484 S.E.2d 769 (1997).

- Trial court did not err when the court appointed a private attorney to participate in a re-sentencing hearing as the district attorney pro tem, especially if the attorney was a former assistant district attorney and had represented the state during the defendant's original trial. Smith v. State, 234 Ga. App. 213, 505 S.E.2d 858 (1998).

- Attorney appointed by a presiding judge as a part-time district attorney pro tempore assigned pursuant to O.C.G.A. § 15-18-27(a) to prosecute criminal acts allegedly committed by a district attorney and/or the district attorney's staff is not precluded from the private practice of criminal law for the duration of the appointment. State v. Redd, 243 Ga. App. 809, 534 S.E.2d 473 (2000).

- Solicitor general (now district attorney) may retain counsel to assist in trial of case; it is not necessary that the retained counsel's services be commanded by the presiding judge. Hannah v. State, 212 Ga. 313, 92 S.E.2d 89 (1956).

- Solicitor general (now district attorney) in a judicial circuit of this state is not disqualified by the provisions of Ga. Const. 1976, Art. VI, Sec. XI, Para. II (see now Ga. Const. 1983, Art. VI, Sec. VIII, Para. I), former Code 1933, §§ 24-2908, 24-2913, and 24-2914 (see now O.C.G.A. §§ 15-18-5 and15-18-6), or by any other law to appear before the courts of a different judicial circuit at the request of the prosecution on a trial for murder, and assist the solicitor general (now district attorney) of the latter circuit in the prosecution, notwithstanding the last mentioned officer is not indisposed, or disqualified from interest or relationship, or absent from the circuit, and such assistance is not requisitioned by the presiding judge. Floyd v. State, 182 Ga. 549, 186 S.E. 556 (1936).

Solicitor general (now district attorney) of another circuit may, at the request of the prosecution, appear and assist in the trial although not requisitioned by the judge, even though the solicitor general (now district attorney) of the trial circuit is not indisposed. Hannah v. State, 212 Ga. 313, 92 S.E.2d 89 (1956).

Oath of assisting prosecuting counsel is not required. Lindsay v. State, 138 Ga. 818, 76 S.E. 369 (1912).

- Phrase "disqualified from interest," used in this section, means a "personal interest," and a solicitor (now district attorney) is not disqualified from personal interest in a case if the solicitor was not acting in the solicitor's personal or individual character, or for the solicitor's personal or individual interest, but in the solicitor's character as an officer of the law specially charged by statute to perform this particular duty. Scott v. State, 53 Ga. App. 61, 185 S.E. 131 (1936), aff 'd, 184 Ga. 164, 190 S.E. 582 (1937); State v. Davis, 159 Ga. App. 537, 284 S.E.2d 51 (1981).

- While the prosecuting officer should see that no unfair advantage is taken of the accused, yet the prosecuting officer is not a judicial officer; the public prosecutor is necessarily a partisan in the case, and if the prosecutor were compelled to proceed with the same circumspection as the judge and jury there would be an end to the conviction of criminals. Scott v. State, 53 Ga. App. 61, 185 S.E. 131 (1936), aff 'd, 184 Ga. 164, 190 S.E. 582 (1937).

- While the Code recognizes a disqualification of a solicitor (now district attorney) because of interest or relationship, it does not define what interest or what relationship will disqualify the solicitor. Scott v. State, 53 Ga. App. 61, 185 S.E. 131 (1936), aff 'd, 184 Ga. 164, 190 S.E. 582 (1937).

- If prosecuting attorney has personal interest, it may disqualify the prosecuting attorney. Scott v. State, 53 Ga. App. 61, 185 S.E. 131 (1936), aff 'd, 184 Ga. 164, 190 S.E. 582 (1937).

- If the prosecuting attorney personally is involved in the offense under investigation, the prosecuting attorney should not be allowed to advise the grand jury and secure a bill. Scott v. State, 53 Ga. App. 61, 185 S.E. 131 (1936), aff 'd, 184 Ga. 164, 190 S.E. 582 (1937).

- Public policy prohibits a district attorney from prosecuting a case, even though the district attorney does not actually try the case personally, while representing the victim of the alleged criminal act in a divorce proceeding involving the accused. Davenport v. State, 157 Ga. App. 704, 278 S.E.2d 440 (1981).

- Solicitor general (now district attorney), related to stockholders in a corporation which owned the stock of another corporation alleged to have been cheated and defrauded, was not disqualified to appear before the grand jury to obtain such indictment, or to prosecute the case before a jury, it not appearing that in doing so the solicitor general was actuated by personal interest in the matter. Scott v. State, 53 Ga. App. 61, 185 S.E. 131 (1936), aff 'd, 184 Ga. 164, 190 S.E. 582 (1937).

- Solicitor general (now district attorney), though depositor of bank, may prosecute director thereof. Stapleton v. State, 19 Ga. App. 36, 90 S.E. 1029 (1916); Spence v. State, 20 Ga. App. 61, 92 S.E. 555, cert. denied, 20 Ga. App. 832, 92 S.E. 555 (1917).

Interest is absent if solicitor general (now district attorney) signed indictment in that capacity, and then signed as prosecutor. Pinkney v. State, 22 Ga. App. 105, 95 S.E. 539 (1918).

Cited in Stokes v. Fortson, 234 F. Supp. 575 (N.D. Ga. 1964); In re Pending Cases, 234 Ga. 264, 215 S.E.2d 473 (1975); Carroll v. State, 147 Ga. App. 332, 248 S.E.2d 702 (1978); Rutledge v. State, 245 Ga. 768, 267 S.E.2d 199 (1980); McGraw v. State, 199 Ga. App. 389, 405 S.E.2d 53 (1991); Cramer v. Spalding County, 261 Ga. 570, 409 S.E.2d 30 (1991); McPherson v. State, 274 Ga. 444, 553 S.E.2d 569 (2001); State v. Mantooth, 337 Ga. App. 698, 788 S.E.2d 584 (2016).

OPINIONS OF THE ATTORNEY GENERAL

"Competent attorney" defined.

- "Competent attorney" under former Code 1933, §§ 24-2913 and 24-2914 (see now O.C.G.A. § 15-18-5) would be one who meets the qualifications for the office of district attorney set forth in former Code 1933, § 24-2901 (see now O.C.G.A. § 15-18-3). 1977 Op. Att'y Gen. No. U77-50.

- Once a district attorney pro tempore has been appointed, the district attorney is still paid by the state if the district attorney has not resigned or abandoned that office. 1977 Op. Att'y Gen. No. U77-50.

RESEARCH REFERENCES

Am. Jur. 2d.

- 63C Am. Jur. 2d, Prosecuting Attorneys, §§ 16, 17.

- 27 C.J.S., District and Prosecuting Attorneys, § 81 et seq.

- Illness or incapacity of judge, prosecuting officer, or prosecution witness as justifying delay in bringing accused speedily to trial - state cases, 78 A.L.R.3d 297.

Validity, under state law, of appointment of independent special prosecutor to handle political or controversial prosecutions or investigations of persons other than regular prosecutor, 84 A.L.R.3d 29.

Validity, under state law, of appointment of special prosecutor where regular prosecutor is charged with, or being investigated for, criminal or impeachable offense, 84 A.L.R.3d 115.

Appealability of state court's order granting or denying motion to disqualify attorney, 5 A.L.R.4th 1251.

Disqualification or recusal of prosecuting attorney because of relationship with alleged victim or victim's family, 12 A.L.R.5th 909.

Disqualification of prosecuting attorney in state criminal case on account of relationship with accused, 42 A.L.R.5th 581.

What circumstances justify disqualification of prosecutor in federal criminal case, 110 A.L.R. Fed 523.