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17 Results
State | Citation | Description/Statute Name | Question | Brief answer | Language from the opinion | When does the case apply? | |
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Louisiana | Op. Att'y Gen. No. 97-237 (June 18, 1997) | Uniform eligibility criteria for indigency standards | Does allowing different municipalities to set their own indigency standards or fines/fees violate the equal protection afforded by the state’s constitution? | Unclear, but different municipalities are required by statute to have the same standards |
(d) uniform eligibility criteria for determining indigency and the eligibility of defendants to qualify for indigent defender representation at the district and state level;(citing language from statute creating the Louisiana + See moreDefense Board)
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Ability to pay |
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Louisiana | Op. Att'y Gen. No. 95-449 (Nov. 8, 1995) | Collection contracts with private vendors | Which fines and/or fees may be collected by a private vendor? | no stated limit |
You have requested our opinion as to whether it is permissible for the Sheriff, with the formal approval of the District Court, to enter into such an agreement. If so, + See moreyou ask whether the public bid laws apply in procuring the services of a collection agency. We have reviewed the constitutional and statutory provisions relating to the powers and duties of sheriffs and can find nothing that would prohibit the Sheriff from entering into such an agreement. Our opinion is predicated upon the concurrence to the agreement of all parties enumerated hereinabove, and a formal order of the District Court Judge authorizing the contract and the percentage and/or fee to be retained by the collection agency. As discussed, this opinion is limited to only those fines that have been previously assessed, are currently delinquent and which you have been unable to collect. While a contract for the services of a collection agency are not required to be publicly bid by the Sheriff, we recommend that you solicit several proposals to ensure the confection of a contract that is most favorable to your office.
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Revenue flow |
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Louisiana | Op. Att'y Gen. No. 83-183 (June 17, 1983) | Court's authority to impose costs | Other applicable opinions |
It is well settled that the recovery and allowance of costs in criminal prosecutions is dependent entirely on statutory provisions. Absent statutory authority, a court has no power to award + See morecosts against a defendant on conviction. See C. J. S. Costs Section 435, 437.
Op. Att'y Gen. No. 83-183 (June 17, 1983)
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Fines and fees | |
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Alabama | Ala. Att'y Gen. Op. 2003-086 | Alabama-Attorney General opinion |
Are the same procedural protections that are required in criminal proceedings required in civil collection/contempt proceedings arising from criminal justice debt when those proceedings may result in incarceration? What if + See morethe proceedings may only result in additional fines or non-incarceration penalties?
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An indigent defendant facing contempt proceedings where he is sentenced to a term of imprisonment, which is suspended, is entitled to the appointment of counsel pursuant to Alabama v. Shelton. |
Under Alabama v. Shelton, 122 S. Ct. 1764, 1767 (2002), a defendant is entitled to counsel if he: (1) is indigent; (2) has not waived the right to coun¬sel; + See moreand (3) is given a suspended sentence that may “end up in the actual depri¬vation of [his] liberty[.]” Based on the scenario you have presented, if the con¬temnor is indigent and, as it appears, he was not advised of and did not waive the right to counsel, he was entitled to an attorney at the time he pleaded guilty to the contempt charges. Consequently, he cannot be incarcerated on the con¬tempt charges. Under Shelton, appointment of counsel for indigent defendants is a con-stitutional prerequisite to the imposition of a conditional or suspended term of imprisonment. Although the contempt proceeding is considered “quasi-criminal” in nature and characterized as a “violation,” rather than a “crime” [see Ivey v. State, 698 So. 2d 179, 184 n.2 (Ala. Crim. App. 1995), aff’d, 698 So. 2d 187 (Ala. 1997)], because the defendant faces the possibility of incarceration [see ALA. CODE §13A-5-7 (1994) (stating that a defendant faces a term of imprisonment for both misdemeanors and violations)], he is entitled to counsel. See Lassiter v. Dep’t of Soc. Serv., 452 U.S. 18, 25 (1981) (recognition of right to appointed counsel in a civil proceeding “where the litigant may lose his physical liberty if he loses the litigation”); see also Opinion to Rex K. Rainer, Director, Department of Finance, dated July 23, 1982, A.G. No. 82-00465; Ridgway v. Baker, 720 F.2d 1409, 1413 (5th Cir. 1983).
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Enforcement |
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Alabama | Ala. Att'y Gen. Op. 2002-036 | Alabama-Attorney General opinion |
The United States Supreme Court and the Supreme Court of Alabama have set forth minimal due process procedures to be afforded to a probationer in a probation revocation hearing.
In a + See moreprobation revocation hearing, the probationer must be given written notice of the claimed violations of probation, a written statement by the factfinder as to the evidence relied on, and the reasons for revoking his probation.
Because review of probation revocation proceedings from district or municipal court is in the nature of certiorari, no appeal bonds would be set.
The right to counsel in probation revocation proceedings is not absolute.
The judge conducting the probation hearing should decide on a case-by-case basis whether due process requires that an indigent probationer be represented by counsel.
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the Supreme Court of Alabama has set forth the requirements and guidelines that must be met for minimal due process to be accorded the probationer under Morrissey and Gagnon before + See morehis pro¬bation can be revoked. These guidelines include:
1. Written notice to the probationer of the claimed violations of probation.
2. Disclosure to the probationer of evidence against him or her.
3. Opportunity of probationer to be heard in per-son and to present witnesses and documentary evidence.
4. The right to confront and cross-examine adverse witnesses (unless the judge specifically finds good cause for not allowing confrontation).
5. A written statement by the judge as to the evi-dence relied on and reasons for revoking proba-tion.
6. The trial judge who granted probation may also conduct the revocation hearing. (We are not convinced that a detached and neutral judge should hold a revocation hearing. Judges preside over retrials. There appears to be no sound rea-son why the judge who granted probation could not fairly and impartially preside over revocation of probation hearing.)
7. We see no valid reason for having two hear¬ings if the probationer has been given sufficient notice of the charges and the evidence to be relied on for revocation of probation. If the pro¬bationer has not had time to prepare to refute the charges and evidence against him, he can have a timely continuance. 8. The judge conducting the probation hearing should decide on a case by case basis whether due process requires that an indigent probationer be represented by counsel.
9. It is not to be understood that proof beyond a reasonable doubt or the preponderance of the evidence are the standards to be applied in determining whether the probation should be revoked. The trial judge must only be reasonably satisfied from the evidence that the probationer has violated the conditions of his probation. Fiorella v. State, 40 Ala.App. 587, 121 So.2d 875 (1960).
Armstrong v. State, 294 Ala. 100, 102-03, 312 So. 2d 620, 622-23 (Ala. 1975) (footnote omitted).
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Enforcement | |
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Alabama | Ala. Att'y Gen. Op. 1998-00043 | Alabama-Attorney General opinion | What authority do county or municipal courts have to set fines or fees? |
A municipality may enter into a contract with a pri¬vate probation service to fulfill the needs of the munic¬ipal court. Furthermore, a municipal judge can assess a supervision fee upon + See moreeach probationer as a condition of probation. This fee, however, cannot exceed the proba¬tioner's ability to pay.
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Court costs are prescribed by statute and cannot be extended. See Attorney General's Opinion to Honorable Steven E. Blair, dated August 11, 1995, A.G. No. 95-00283.
The municipal probation + See morestatute, however, gives the judge broad authority to place conditions on probation. ALA. CODE _ 12-14-13 (1995). The statute not only pro¬vides a listing of conditions that the judge may require the probationer to comply with, but also gives the judge the authority to require the probationer to comply with "any other conditions." Id. Therefore, it is the opinion of this Office that a municipal judge can assess a super¬vision fee upon each probationer as a condition of probation.
Any condition placed on a probationer that requires the payment of a fee, fine, or restitution should not exceed the probationer's ability to pay. See ALA. R. CRIM.
P. 27.1, Committee Comments.
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Alabama | Ala. Att'y Gen. Op. 2012-027 | Alabama-Attorney General opinion | Other applicable opinions | Non-indigent defendants may be incarcerated for failure to pay a fine after serving his or her sentence for the underlying offense |
Subject to the limitations of Rule 26.11 of the Alabama Rules of Criminal Procedure, the court may place a nonindigent defendant in jail for failure to pay a fine after + See morethe defendant has completed his or her sentence or probation for the underlying offense. The defendant may serve time until the fine is paid or no longer than one day for each $15 of the fine, no longer than the maximum term of imprisonment for the offense, and no longer than one year if the offense is a felony.
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Enforcement |
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Alabama | Ala. Att'y Gen. Op. 2002-336 | Alabama-Attorney General opinion | Other applicable opinions | A municpality may publish, in a newspaper of local circulation, the names of those individuals with outstanding warrants for unpaid fines and the amount of those fines. |
This Office has previously opined that municipal court records are public records to which the public has access with certain limitations as to confidential information contained therein. Opinion of + See morethe Attorney Gen-eral to the Honorable Bernice Kuykendall, Mayor, City of Cordova, dated September 2, 1987, A.G. No. 87-00303. As public records, the contents thereof, with certain limitations, may be published in the newspaper. Opinion of the Attorney General to the Honorable William T. Musgrove Jr., Attorney, City of Florence, dated October 6, 1988, A.G. No. 89-00003. The name, address, birth date, offense, and the amount of the past-due fine, as nonconfidential information contained in a municipal court record, may be published in a local newspaper as part of the collec-tion process. Id.
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Enforcement |
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Alabama | Ala. Att'y Gen. Op. 2000-020 | Alabama-Attorney General opinion | Other applicable opinions |
When a defendant is arrested for failure to appear or failure to pay, Rule 4.3(b)(3), ARCrP, requires that a judge or magistrate conduct an initial appearance hearing within 72 hours + See moreof arrest if the defendant has not obtained his or her release from jail.
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Regarding circumstances where a defendant fails to pay court-ordered monies, Rule 26.11, ARCrP, provides that a judge must conduct a hearing to determine the financial means of a defendant for + See morethe payment of court-ordered fines and costs, and authorizes imprisonment for non-indigent defendants who fail to pay. Rule 27.2, ARCrP, authorizes a judge to order a defendant to pay court costs and fines as a condition of probation. As previously discussed, in cases involving breaches of con¬ditions of probation, including conditions requiring payment of fines, costs, restitution, or other court-ordered assessments, the court must con¬duct an initial appearance hearing upon the arrest of a probationer before the probationer is incarcerated. The court must inquire into the proba¬tioner’s financial status and determine whether the probationer is indigent since incarceration of an indigent for nonpayment is prohibited.
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Enforcement |
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Tennessee | Bradford v. Bradford, No. 86-262-II, 1986 WL 2874, at *5 (Tenn. Ct. App. Mar. 7, 1986); Daniels v. Grimac, 342 S.W.3d 511, 517 (Tenn. Ct. App. 2010) | Case law |
Are the same procedural protections that are required in criminal proceedings required in civil collection/contempt proceedings arising from criminal justice debt when those proceedings may result in incarceration? What if + See morethe proceedings may only result in additional fines or non-incarceration penalties?
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Courts have recognzied that defendants are entitled to counsel, an opportunity to be heard, and notice in civil proceedings which may result in incarceration. |
We are of the opinion that in light of Lassiter, due process mandates that an indigent defendant has the right to be represented by counsel at a contempt proceeding whether + See moreit be called civil or criminal if the indigent defendant faces the loss of his freedom.
Indirect contempt arises from acts committed out of the presence of the court, and cannot be punished unless the accused has been given the due process protections of notice and an opportunity to be heard.
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Enforcement |
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Tennessee | Cf. Tenn. Op. Att'y Gen. No. 89-03 (Jan. 12, 1989) | Imprisonment for Contempt of Non-Payment of Fines | Does allowing different municipalities to set their own indigency standards or fines/fees violate the equal protection afforded by the states constitution? | Municipalities can set their own standards as long as the standards comply with constitutional and statutory protections |
"The municipal charter provides that the city court may imprison a party for up to ten days for violation of city ordinances, and the city council has passed a resolution + See moreto this effect.It appears that the municipal provision outlined above complies with the procedures described in T.C.A. § 4024104, as well as constitutional safeguards, for determination of the defendant's ability to pay, thereby giving rise to an inference of willful disobedience and contempt of court where there has been a subsequent missed payment without notice of good cause to the court."
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Ability to pay |
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Tennessee | See Tenn. Code Ann. § 40-24-105(d)(1) | Collection; fines, costs and litigation taxes; license revocation | Which fines and/or fees may be collected by a private vendor? | Statutory law provides that all fines and fees may be collected by a private vendor when a defendant has been in default for more than six months. |
"After a fine, costs, or litigation taxes have been in default for at least six (6) months, the district attorney general or criminal or general sessions court clerk may retain + See morean agent to collect, or institute proceedings to collect, or establish an in-house collection procedure to collect, fines, costs and litigation taxes."
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Enforcement |
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Tennessee | Tenn. Op. Att'y Gen. No. 89-104 (Aug. 17, 1989) (citing State ex rel. Wright v. Upchurch, 254 S.W.2d 748, 749 (Tenn. 1953)) | Whether a Defendant Found in Willful Contempt of Court for Failure to Pay Child Support May Be Incarcerated Where He Lacks the Present Ability to Pay the Arrearage. | Who has the burden of proof in an ability to pay determination? What is the standard of proof required? | At least in civil contempt proceedings, the burden of proof is on the defendant. |
"In any case, the inability to pay is an affirmative defense to a petition for civil contempt and the burden of proof is on the defendant to establish his inability + See moreto pay."
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Ability to pay |
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Tennessee | Tenn. Code Ann. § 40-24-104; Tenn. Op. Att'y Gen. No. 89-03 (Jan. 12, 1989) | Imprisonment for Contempt for NonPayment of Fines | Should ability to pay be considered when imposing fines or fees or only when collecting fines or fees? | Statutory law provides that ability to pay must be considered when collecting fines, but at least some courts consider ability to pay when imposing fines and fees as well. |
If the defendant fails to pay the fine as directed, or is unable to pay the fine and so represents upon application to the court, the court, after inquiring into + See moreand making further investigation, if any, which it may deem necessary with regard to the defendant's financial and family situation and the reasons for nonpayment of the fine, including whether the nonpayment was contumacious or was due to indigency, may enter any order that it could have entered under § 40-24-101, or may reduce the fine to an amount that the defendant is able to pay, or may direct that the defendant be imprisoned until the fine, or any portion of it, remaining unpaid or remaining undischarged after a pro rata credit for any time that may already have been served in lieu of payments, is paid. The court shall determine and specify, in the light of defendant's situation and means and of defendant's conduct with regard to the nonpayment of the fine, the period of any imprisonment in default of payment of the fine within the limits of the penalties for a Class C misdemeanor.
In the instant situation, the following circumstances form the factual basis resulting in the issuance of a capias for contempt of court: When a fine is imposed, a hearing is held at the same time to determine the defendant's ability to pay. If it appears that defendant cannot pay, the case is continued for several months to see if circumstances change during that time. If the court determines that defendant is able to pay or to make payments, a payment schedule is set up. Defendant is instructed at that time to notify the court if any emergency comes up and, if so, the court will consider defendant's excuse. If defendant thereafter misses a payment and has not notified the court, then a capias is issued for his arrest for contempt of court, since there has already been a finding that that defendant is able to pay.
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Ability to pay |
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Tennessee | Town of Nolensville v. King, 151 S.W.3d 427, 433 (Tenn. 2004); TN Const. Art. 6, § 14; | case law | What authority do county or municipal courts have to set fines or fees? | The Tennessee constitution does not allow a county or municipal court to set a fine or fee greater than $50 without a trial by jury. |
"Accordingly, for the reasons stated herein, we hold that Article VI, section 14 of the Tennessee Constitution prohibits a municipal court judge from imposing fines in excess of fifty dollars + See morefor a violation of a municipal ordinance, absent a valid waiver of the defendant's Article VI, section 14 right."
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Fines and fees |
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Tennessee | Corum v. Holston Health & Rehab. Ctr., 104 S.W.3d 451, 454 (Tenn. 2003) | case law | What authority does the state supreme court have to impose binding state-wide rules on the imposition or collection of fees and fines? | The state supreme court has the power to impose rules which govern the practice and procedure of the lower courts. |
"[I]t is well settled that the Tennessee Supreme Court has the inherent power to promulgate rules governing the practice and procedure of the courts of this state. This inherent power + See moreexists by virtue of the establishment of a Court and not by largess of the legislature"
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Enforcement |
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Tennessee | State v. Smith, No. C.C.A. 86-121-III, 1986 WL 10893 (Tenn. Crim. App. Oct. 3, 1986) | case law | Under what circumstances does a conflict of interest in the imposition or enforcement of court debt violate state law? | This has not been explicitly addressed by courts. However, in the right-to-counsel context, Tennesee generally recognizes that conflicts of interests should be avoided where they are likely to occur. |
Unless it appears that there is good cause to believe no conflict of interest is likely to arise, the court shall take such measures as may be appropriate to protect + See moreeach defendant's right to counsel.
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Enforcement |