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State Citation Description/Statute Name Question Brief answer Language from the opinion When does the case apply?
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Georgia 1989 Ga. Op. Atty. Gen. 160 (Ga.A.G.), Ga. Op. Atty. Gen. No. U89-8, 1989 WL 264820 Authority to delegate power of collection of probation supervision services to private actors Which fines and/or fees may be collected by a private vendor? When it comes to probation services at least, County governments may not enter into agreements with private corporations for probation services unless authorized by legislation.
O.C.G.A. § 42–8–43 provides that those county probation systems in existence on February 8, 1956, would not be affected by the passage of the State-wide Probation Act, and further provides
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that ‘[t]he personnel of the [county] system shall continue to be appointed and employed under the same procedure as used prior to February 8, 1956, and the system shall be financed under the same method as it was financed prior to February 8, 1956.’ Based on this provision, it is my opinion that any remaining county probation systems could not be converted into a system operated by a private corporation without legislative authority; therefore, the Community Corrections Corporation's proposal could not be accepted by any county still operating a county probation system.
Fines and fees
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Georgia 1983 Ga. Op. Atty. Gen. 247 (Ga.A.G.), Ga. Op. Atty. Gen. No. U83-29, 1983 WL 41746 Fees for feeding prisoners Under what circumstances does a conflict of interest in the imposition or enforcement of court debt violate state law? In the limited context of feeding prisoners, sheriffs may not be paid fees for feeding prisoners in their custody, either directly or via a contract entered into after competitive bidding.
Finally, you suggest that such a contract might create a conflict of interest because the sheriff's legal duty to care for county prisoners would be at odds with his financial
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interest in his contract. I agree with your conclusion. To the extent that the sheriff would be responsible to supervise the performance of one contracting to feed county prisoners, this conflict of interest, standing alone, would make the sheriff ineligible to enter into such a contract. An analogous situation was addressed in Op. Att'y Gen. U83-8 (copy attached), and it was concluded that a county commission chairman could not contract to supply groceries to his county. Use of a sealed bid procedure to award the contract was found not to avoid the conflict of interest because the chairman would still be required to supervise performance under the contract. After Op. Att'y Gen. U83-8 was issued, the General Assembly acted to authorize certain transactions between political subdivisions and their officers and employees, including sales of personal property made pursuant to sealed competitive bids. O.C.G.A. § 16-10-6(a)(2)(B) (Ga. Laws 1983, pp. 1326, 1339). The new Code section does not affect your question because in my view the feeding of prisoners does not constitute the sale of personal property to the county.
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Georgia Ga. Op. Atty. Gen. No. U92-4 (Ga.A.G.), 1992 WL 478489 Georgia-Attorney General opinion Other applicable oppinions
[A] sheriff must accept into custody those individuals convicted of criminal offenses who have been sentenced to a term of incarceration, and that the sheriff may not require payment of
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a surcharge as a condition precedent to service of the sentence.
Pretermitting any discussion of the sheriff's authority to impose such a surcharge, Georgia law makes clear that the sheriff may not condition service of the sentence upon payment of the
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surcharge. The sheriff, by virtue of his office, is jailer of the county. O.C.G.A. § 42–4–1(a). As such, he has a legal duty to take into custody those convicted of crimes and sentenced to a term of imprisonment. O.C.G.A. § 42–4–12. The refusal to do so is a felony offense. Id. Further, a writ of mandamus may issue to compel performance of this duty. Griffin v. Chatham County, 244 Ga. 628, 629 (1979). For the foregoing reasons, it is my unofficial opinion that a sheriff must accept into custody those individuals convicted of criminal offenses who have been sentenced to a term of incarceration, and that the sheriff may not require payment of a surcharge as a condition precedent to service of the sentence.
Fines and fees
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Georgia 1985 Ga. Op. Atty. Gen. 203 (Ga.A.G.), Ga. Op. Atty. Gen. No. U85-32, 1985 WL 68946 Collection of public defender fees from indigent defendants Superior court's ability to collect fees from an indigent defendant for representation by a public defender is limited to the amount that indigent defendant can afford to reimburse.
In my opinion, O.C.G.A. § 17-12-10(c) governs the extent to which reimbursement to the county may be required from indigent defendants. The power to tax the costs of representation by
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a public defender is, under the statute, limited ‘[t]o the extent that [the defendant] . . . is able to provide for the employment of an attorney, the other necessary services and facilities of representation, and court costs . . .’ Thus, the court would not be authorized to order reimbursement beyond the indigent defendant's ability to pay for the services rendered by the public defender. However, this does not exclude partial reimbursements where the defendant is capable of paying some portion of the expenses of representation, as where, for example, the defendant is neither destitute nor a pauper. O.C.G.A. § 17-12-10(a)…. …In summary, it is my unofficial opinion that under O.C.G.A. § 17-12-10(c) a superior court may tax additional amounts onto any fine or restitution where a criminal defendant was represented by a full or part-time public defender, but the court may only order such payments or reimbursements to the extent of the individual defendant's financial capability to pay.
Fines and fees
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Georgia 1987 Ga. Op. Atty. Gen. 96 (Ga.A.G.), Ga. Op. Atty. Gen. No. U87-4, 1987 WL 119551 Fees and expenses of medical examining teams and hospital committees Fees for psychiatric examinations performed on defendant in a criminal case should not be imposed on defendant but on the county treasury.
In neither the civil nor criminal context is the cost of these examinations and testimony placed on the person to be examined, or even on the person or entity initiating
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the legal action. The mental retardation comprehensive evaluating teams are statutorily required to be provided by the State Department of Human Resources. O.C.G.A. § 37-4-40. In the criminal context, psychiatric examinations of defendants are properly a charge upon the county treasury, whether required to benefit the defendant, Ake v. Oklahoma, 470 U.S. 68 (1985), or as an aid to the court during trial or prior to sentencing, O.C.G.A. §§ 17-7-130.1, 17-7-131; Lingo v. State, supra. Op. Att'y Gen. U85-29 29. In regard to the latter, the Georgia Supreme Court has said that “the psychiatrist appointed by the court for a sanity examination of the defendant may not be regarded as a prosecution witness, but is instead a witness for the court.” Massey v. State, 226 Ga. 703, 704 (1970). Nor is his testimony subject to exclusion by virtue of the defendant's psychiatrist-patient privilege. Pierce v. State, 243 Ga. 454 (1979).
Fines and fees
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Montana 49 Mont. Op. Att'y Gen. No. 18, 2002 WL 1009805 Montana-Attorney General opinion What authority do county or municipal courts have to set fines or fees?
The Montana Constitution and Montana law authorize amunicipal court judge to release a defendant on a time-pay bail bond, defined as a bond in an amount set by the judge to be
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paid in installments.
If the court finds some form of bail necessary, however, Mont. Code Ann. § 46-9-301, provides more specific factors for a court to consider. These factors include, among other matters
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not related to the safety of the victim and the community, that the amount shall be “not oppressive,” and that the amount shall be “considerate of the financial ability of the accused.” Id., §§ 46-9-301(4) and (6). The time-pay bail bonds system comports with these requirements.The Montana Constitution and Montana law authorize a municipal court judge to release a defendant on a time-pay bail bond, defined as a bond in an amount set by the judge to be paid in installments.
Ability to pay
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Montana 41 Mont. Op. Att'y Gen. No. 59 Montana-Attorney General opinion Other applicable opinions Cash bail for minor offenses may be increased to include applicable surcharges
In order to collect the additional $10 charge required by section 46-18-236, MCA, a court may exercise its power under section 46-9-302, MCA, and increase the bail schedule for minor
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offenses in a like amount.
Enforcement
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Utah Normal G. Angus, Informal Opinion No. 87-06, 1987 WL 272559, at *2-3 (July 15, 1987) Informal Opinion No. 87-06
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
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the proceedings may only result in additional fines or non-incarceration penalties?
Unclear. Bail forfeiture proceedings do not provide the same safeguards. I am unsure if this can be extrapolated to collection proceedings.
Bail forfeiture actions are civil in nature; criminal procedure safeguards are not implicated….In comparing the two approaches to nonappearance—bail forfeiture versus contempt—it becomes readily apparent that the contempt process presents
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fewer obstacles of statutory construction and would be procedurally easier to effectuate.
Enforcement
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Utah Ms. Faye Price, Informal Opinion No. 79-51, 1979 WL 32606, at *1 (Feb. 15, 1979) Informal Opinion No. 79-51, Does allowing different municipalities to set their own indigence standards or fines/fees violate the equal protection afforded by the state’s constitution?
Possibly. Ability to pay should be consistently applied in reference to statute that requires parents and guardians to pay for the cost and maintenance of State Training School residents. Therefore,
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it is possible that determining ability to pay when assessing criminal justice debt presents same constitutional issues.
there could be constitutional difficulties arise from the manner in which it is applied if great care is not taken to insure that the determination of financial responsibility is made
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on a strictly consistent and rational basis.
Ability to pay
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Utah Ronald W. Thompson, Informal Opinion No. 77-150, 1978 WL 25972, at *1 (Feb. 7, 1978) Informal Opinion No. 77-150 see above see above
There is no requirement in the statute that there be a judicial determination of indigence, and it does not appear that a county could properly limit its payments to persons
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who have been judicially determined indigent.
Ability to pay
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Washington Wash. Att'y Gen. Op. 1993 NO. 11 (1993) Ability to pay - considered at imposition and collection of fines and fees Should ability to pay be considered when imposing fines or fees or only when collecting fines or fees? They must be considered both when imposing and collecting fines and fees
[A] county considering an ordinance authorizing a court to impose a multiple booking fee as part of a criminal sentence should heed constitutional considerations relating to the offender's ability to
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pay the fee. Some statutes providing for the repayment of costs incurred on behalf of a criminal defendant, also known as recoupment statutes, have been challenged as unconstitutional. The courts generally have upheld these statutes, provided that they contain certain safeguards. As set forth in Fuller v. Oregon, 417 U.S. 40, 40 L.Ed.2d 642, 94 S.Ct. 2116 (1974), and summarized in State v. Earls, 51 Wn.App. 192, 195–96, 752 P.2d 402 (1988), the safeguards are:(1) The requirement of repayment must not be mandatory;(2) Repayment may be imposed only upon convicted defendants;(3) Repayment may only be ordered if the defendant is or will be able to pay;(4) The financial resources of the defendant must be taken into consideration;(5) A repayment obligation may not be imposed if it appears there is no likelihood the defendant's indigency will end;(6) The convicted person must be permitted to petition the court for remission of the payment of costs or any unpaid portion thereof;(7) The convicted person cannot be held in contempt for failure to repay if the default was not attributable to an intentional refusal to obey the court order or a failure to make a good faith effort to make repayment.
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Washington Wash. Att'y Gen. Op. 1993 NO. 11 (1993) Authority to set fines/fees What authority do county or municipal courts have to set fines or fees? Counties are given extensive freedoms to set fines and fees for municipal violations, but cannot do so in fields in which the state preempts
Counties have broad authority under article 11, section 11 of the state constitution to act in furtherance of their police power. That section provides: “Any county, city, town or township
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may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws.” The State Supreme Court has described this provision as follows: This is a direct delegation of the police power as ample within its limits as that possessed by the legislature itself. It requires no legislative sanction for its exercise so long as the subject-matter is local, and the regulation reasonable and consistent with the general laws. Bellingham v. Schampera, 57 Wn.2d 106, 109, 356 P.2d 292 (1960); see also Brown v. Yakima, 116 Wn.2d 556, 559, 807 P.2d 353 (1991).Under this provision, counties may enact ordinances regarding “all those measures which bear a reasonable and substantial relation to promotion of the general welfare of the people.” State v. Seattle, 94 Wn.2d 162, 165, 615 P.2d 461 (1980). County ordinances prescribing local offenses and punishments for them would constitute police power measures of the county under article 11, section 11 of the Washington Constitution. Such county ordinances may not, however, “conflict” with state laws. The courts have interpreted this to mean that counties may not legislate in a particular area when the state has preempted the field, or when the county legislation and state legislation on the same subject cannot be harmonized. Brown, 116 Wn.2d at 559.
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Washington See answer for 8 above Washington-Attorney General opinion What authority does the state supreme court have to impose binding state-wide rules on the imposition or collection of fees and fines? See answer for 8 above See answer for 8 above
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Washington Not answered Washington-Attorney General opinion Under what circumstances does a conflict of interest in the imposition or enforcement of court debt violate state law? Not answered Not answered