2021 Georgia Code
Title 15 - Courts
Chapter 18 - Prosecuting Attorneys
Article 1 - General Provisions
§ 15-18-6. Duties of District Attorney

The duties of the district attorneys within their respective circuits are:

1. To attend each session of the superior courts unless excused by the judge thereof and to remain until the business of the state is disposed of;
2. To attend on the grand juries, advise them in relation to matters of law, and swear and examine witnesses before them;
3. To administer the oaths the laws require to the grand and trial jurors and to the bailiffs or other officers of the court and otherwise to aid the presiding judge in organizing the courts as he may require;
4. To draw up all indictments or presentments, when requested by the grand jury, and to prosecute all indictable offenses;
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;
6. To attend before the appellate courts when any criminal case emanating from their respective circuits is tried, to argue the same, and to perform any other duty therein which the interest of the state may require;
7. To advise law enforcement officers concerning the sufficiency of evidence, warrants, and similar matters relating to the investigation and prosecution of criminal offenses;
8. To collect all money due the state in the hands of any escheators and to pay it over to the educational fund, if necessary, compelling payment by rule or order of court or other legal means;
9. To collect all claims of the state which they may be ordered to collect by the state revenue commissioner and to remit the same within 30 days after collection; and on October 1 of every year to report to the state revenue commissioner the condition of the claims in their hands in favor of the state, particularly specifying:
   1. The amounts collected and paid, from what sources received and for what purposes, and to whom paid;
   2. What claims are unpaid and why;
   3. What judgments have been obtained, when, and in what court; and
   4. What actions are instituted, in what courts, and their present progress and future prospects;
10. To assist victims and witnesses of crimes through the complexities of the criminal justice system and ensure the victims of crimes are apprised of the rights afforded them under the law; and
11. To perform such other duties as are or may be required by law or which necessarily appertain to their office.

(Laws 1799, Cobb's 1851 Digest, p. 574; Laws 1823, Cobb's 1851 Digest, p. 1025; Laws 1828, Cobb's 1851 Digest, p. 1027; Laws 1836, Cobb's 1851 Digest, p. 254; Laws 1845, Cobb's 1851 Digest, p. 452; Ga. L. 1853-54, p. 107, § 2; Code 1863, § 351; Code 1868, § 412; Code 1873, § 377; Code 1882, § 377; Civil Code 1895, § 4392; Penal Code 1895, § 798; Civil Code 1910, § 4926; Penal Code 1910, § 798; Code 1933, § 24-2908; Ga. L. 1984, p. 842, § 1; Ga. L. 1995, p. 394, § 1; Ga. L. 1997, p. 1319, § 1; Ga. L. 2012, p. 53, § 1/SB 352.)

- Constitutional duties, Ga. Const. 1983, Art. VI, Sec. VIII, Para. I.

Indictments and accusations generally, § 17-7-50 et seq.

Authority of district attorney to request assistance of Georgia Bureau of Investigation to investigate criminal matters, § 35-3-13.

- For article, "The Prosecuting Attorney in Georgia's Juvenile Courts," see 13 Ga. St. B.J. 27 (2008). For article, "Criminal Procedure: Crime Victims' Bill of Rights,” see 35 Ga. St. U. L. Rev. 31 (2018).

JUDICIAL DECISIONS

District attorneys performing duties are immune in civil cases.

- District attorneys who send a letter to the parole board describing aspects of crimes, giving their opinion, and including an autobiographical manuscript detailing a murder are protected by the same immunity in civil cases which is applicable to judges, provided their acts are within the scope of their jurisdiction and intimately associated with the judicial phase of the criminal process. Mosier v. State Bd. of Pardons & Paroles, 213 Ga. App. 545, 445 S.E.2d 535 (1994), cert. denied, 5 U.S. 1040, 115 S. Ct. 1409, 131 L. Ed. 2d 295 (1995).

- Solicitor general (now district attorney) draws the bill of indictment and examines the witnesses, not with a view to the interest of any client, but alone to subserve public justice. Scott v. State, 53 Ga. App. 61, 185 S.E. 131 (1936), aff 'd, 184 Ga. 164, 190 S.E. 582 (1937).

- Prosecutor's office is quasi-judicial, and, while it is the prosecutor's duty, if the prosecutor honestly believes that the evidence shows the guilt of the accused, to insist upon this view before the jury, and to use in the prosecutor's argument all the prosecutor's ability and skill in presenting the case as made by the pleadings and the evidence, still it is under no circumstances the prosecutor's duty either to go outside of the case, and state facts not in evidence, or to appeal to the passions or prejudices of the jury. Cliett v. State, 46 Ga. App. 315, 167 S.E. 610 (1933).

- Under Georgia law, the district attorney is a state rather than a county official. Therefore, a county cannot be held liable in a federal civil rights action for a district attorney's allegedly unconstitutional prosecutorial decisions. Owens v. Fulton County, 690 F. Supp. 1024 (N.D. Ga. 1988), aff'd, 877 F.2d 947 (11th Cir. 1989).

- Internal Operating Procedure 2000-3 of the Appalachian Judicial Circuit, which appoints the district attorney to act as calendar clerk for criminal matters, including setting the time for arraignments, merely aids the judges in the circuit in organizing their courts and is not an unconstitutional delegation of judicial powers; the functions of the district attorney are not exclusively executive, as shown by the requirements in: Ga. Const. 1983, Art. VI, Sec. VIII, Para. I(d) that the district attorney must perform such other services as shall be required by law; O.C.G.A. § 15-18-6(3) that the district attorney shall aid the presiding judge in organizing the courts as the presiding judge may require; and Ga. Unif. Super. Ct. R. 30.1, providing that the judge or the judge's designee shall set the time of an arraignment. Adams v. State, 282 Ga. App. 819, 640 S.E.2d 329 (2006).

- 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).

- In condemnation cases which are brought by the State Highway Department (now Department of Transportation) it is "otherwise specially provided for" that the Department of Law and not the solicitor general (now district attorney) shall prosecute such actions. State Hwy. Dep't v. Smith, 120 Ga. App. 529, 171 S.E.2d 575 (1969).

- Grand jury and the grand jury's committees are without authority to employ attorneys to furnish the grand jury legal services at the county's expense, but must rely upon the district attorney for such services. Daniel v. Yow, 226 Ga. 544, 176 S.E.2d 67 (1970).

- Prosecuting attorney appears before the grand jury in the prosecutor's official capacity and assists the grand jury in an investigation, examining witnesses, and advising the grand jury on questions of law; but the prosecutor is not as a general rule permitted to be present during the deliberations and voting of the jury. Mach v. State, 109 Ga. App. 154, 135 S.E.2d 467 (1964).

- Assistant or deputy prosecuting officers and special assistants to the regular prosecuting officer, duly authorized to assist the latter in the discharge of the prosecutor's duties, are invested with the same rights and subject to the same restrictions, with respect to appearing before the grand jury and participating in the proceedings before that body as the regular prosecuting officer. Mach v. State, 109 Ga. App. 154, 135 S.E.2d 467 (1964).

- Municipal corporations when parties in quasi-criminal cases need not be represented by a solicitor general (now district attorney). McDonald v. Town of Ludowici, 3 Ga. App. 654, 60 S.E. 337 (1908).

- Court of Appeals is without jurisdiction to entertain a writ of error (see now O.C.G.A. §§ 5-6-49 and5-6-50) from a criminal case because the solicitor general (now district attorney) of the circuit represents the state, and service upon the solicitor is insufficient as a matter of law to confer jurisdiction of a writ of error on the Court of Appeals. Robinson v. State, 91 Ga. App. 376, 85 S.E.2d 632 (1955).

- Duty imposed by this section does not include action for divorce since cases of this class are otherwise specially provided for. Boykin v. Martocello, 194 Ga. 867, 22 S.E.2d 790 (1942).

- While it was the duty of the solicitor (now district attorney) to collect all moneys arising from fines and forfeitures, yet if the solicitor states in the solicitor's petition that the solicitor has a surplus which the solicitor desires to pay over to the county treasurer, the solicitor cannot complain because the clerk and the sheriff paid over to the county treasurer stated amounts which should have been turned over to the solicitor (now district attorney) and by the solicitor paid to the county treasurer. This is true for the reason that equity will not require a person to do a useless act. Terrell v. Jolly, 203 Ga. 821, 48 S.E.2d 517 (1948) (decided prior to 1984 amendment).

- Solicitor general (now district attorney) is presumed to have done the solicitor's duty in returning a tax fi. fa. issued by the comptroller general (now state revenue commissioner) to the proper office. John Doe v. Roe, 27 Ga. 68 (1859).

Oath of bailiff need not be administered in open court and entered on the record. Zeigler v. State, 2 Ga. App. 632, 58 S.E. 1066 (1907).

Office of county attorney has no authority to represent state in criminal proceedings. Westbrook v. Zant, 575 F. Supp. 186 (M.D. Ga. 1983), rev'd on other grounds, 743 F.2d 764 (11th Cir 1984).

Cited in Bartlett v. Brunson, 115 Ga. 459, 41 S.E. 601 (1902); Wilson v. Harris, 40 Ga. App. 715, 151 S.E. 402 (1930); Malcom v. Webb, 211 Ga. 449, 86 S.E.2d 489 (1955); In re Pending Cases, 234 Ga. 264, 215 S.E.2d 473 (1975); Wall v. Coleman, 393 F. Supp. 826 (S.D. Ga. 1975); Dampier v. State, 245 Ga. 427, 265 S.E.2d 565 (1980); Mullinax v. McElhenney, 817 F.2d 711 (11th Cir. 1987); Cisco v. State, 285 Ga. 656, 680 S.E.2d 831 (2009); State v. Rowe, 308 Ga. 806, 843 S.E.2d 537 (2020).

OPINIONS OF THE ATTORNEY GENERAL

District attorney not peace officer.

- District attorney does not fall within the definition of "peace officer" of Ga. L. 1968, p. 1249, § 1 (see now O.C.G.A. § 16-1-3). 1969 Op. Att'y Gen. No. 69-339.

- District attorney does not by virtue of the district attorney's office have any arrest powers greater than that of an ordinary citizen and does not exercise any direct powers or control over law enforcement agencies within the district attorney's circuit. 1980 Op. Att'y Gen. No. U80-33.

- As the district attorney may come into possession of county funds, the district attorney's accounts are auditable. 1970 Op. Att'y Gen. No. U70-154.

- If money paid into the registry of a court under a condemnation order remains unclaimed for many years, it may escheat to the state upon compliance by court officers with proper procedure. 1970 Op. Att'y Gen. No. U70-167.

- Trial judge is ultimately responsible for reducing a sentence to writing, even though this duty may be delegated to another officer; in any event, the judge must sign the sentence. 1970 Op. Att'y Gen. No. U70-85.

- District attorney and the state court solicitor are ultimately charged with the responsibility of collecting and distributing the fines levied by their respective courts. 1974 Op. Att'y Gen. No. U74-6.

By virtue of the 1984 legislation, the General Assembly intended to remove from the district attorney any responsibility for either the collection of fines, forfeitures, and costs levied in criminal cases, or the disbursement of such monies into the county treasury. This responsibility now lies with the clerk of court. 1985 Op. Att'y Gen. No. U85-20.

- For a discussion of the respective duties of the prosecuting attorney, sheriff, and clerk of court in the collection of fines and forfeitures in criminal cases, see 1983 Op. Att'y Gen. No. U83-62.

- Construing former Code 1933, § 40-1602 (see now O.C.G.A. § 45-15-3) and paragraph (5) of former Code 1933, § 24-2908 (see now O.C.G.A. § 15-8-6) together, it was concluded that while the Attorney General must actually initiate every lawsuit brought by a state agency absent overriding legislation, district attorneys may, at the request of the administrator of office of consumer affairs, participate in Fair Business Practices Act (see now O.C.G.A. § 10-1-390 et seq.) suits brought by the administrator, so long as the statutorily imposed duties on the Attorney General were observed. 1977 Op. Att'y Gen. No. 77-67.

- Since actions brought by the administrator of the office of consumer affairs under the Fair Business Practices Act (see now O.C.G.A. § 10-1-390 et seq.) were in the name of the state, it was clear that an action under Ga. L. 1975, p. 376, §§ 7 and 8 (see now O.C.G.A. § 10-1-397) was one in which the state was "interested," as that term was used in former Code 1933, § 24-2908 (see now O.C.G.A. § 15-18-6). 1977 Op. Att'y Gen. No. 77-67.

- District attorney may not act on criminal matters in probate or municipal court. 1988 Op. Att'y Gen. No. U88-23.

Probate court judge lacks authority to require that district attorney act as prosecutor for the state in traffic violation proceedings in probate court. 1986 Op. Att'y Gen. No. U86-13.

RESEARCH REFERENCES

Am. Jur. 2d.

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

- 27 C.J.S., District and Prosecuting Attorneys, § 26 et seq.

- Sufficiency of indictment as affected by bill of particulars, 10 A.L.R. 982.

Constitutionality of statute relieving against forfeiture of bail or recognizance, 43 A.L.R. 1233.

Necessity that condition, as regards jurisdictional amount, of right of removal of case from state to federal court, shall have existed at time of commencement of action, 107 A.L.R. 1115.

Time for filing petition for removal of action from state to federal court as affected by extension of time for pleading, 108 A.L.R. 966.

Separable controversy for purpose of removal from state to federal court as arising out of action in which nonresident master or principal is joined as defendant with a resident servant or agent, 110 A.L.R. 188.

Duty and discretion of district or prosecuting attorney as regards prosecution for criminal offenses, 155 A.L.R. 10.

Power of assistant or deputy prosecuting or district attorney to file information, or to sign or prosecute it in his own name, 80 A.L.R.2d 1067.

Enforceability of agreement by law enforcement officials not to prosecute if accused would help in criminal investigation or would become witness against others, 32 A.L.R.4th 990.

Limitations on state prosecuting attorney's discretion to initiate prosecution by indictment or by information, 44 A.L.R.4th 401.