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Unofficial Opinion 95-1

Unofficial Opinion 95-1

January 13, 1995
To: 

Chief Judge
Magistrate Court of Peach County

Re: 

Questions regarding the jurisdiction of the probate court.

You have requested my opinion concerning the jurisdiction of the probate court over certain criminal matters as specified in four questions. I will set forth and then answer your questions in the order in which they were presented.

1. Except for cases arising under O.C.G.A. § 12-3-10, Title 27 (Game and Fish) and Title 40 (Motor Vehicles and Traffic) of the Georgia Code, is it within the jurisdiction of a probate court of this state to set bail for any other criminal offenses not included in O.C.G.A. § 17-6-1(a)?

The probate court in Georgia is a court of limited jurisdiction. The Georgia Constitution provides that "[p]robate courts shall have such jurisdiction as now or hereafter provided by law, without regard to uniformity." Ga. Const. 1983, Art. VI, Sec. III, Para. I. Georgia law providing for the jurisdiction, powers, and duties of the probate court is found in O.C.G.A. §§ 15-9-30 through 15-9-47. Among the enumerated powers of the probate court is the power to hold criminal commitment hearings. O.C.G.A. § 15-9-30(b)(10). It is this power to hold criminal commitment hearings which

authorizes the probate court to set bail in criminal offenses other than those included in O.C.G.A. § 17-6-1(a).

The Code provides in pertinent part:

Any judge of a superior or state court, judge of the probate court, magistrate, or officer of a municipality who has the criminal jurisdiction of a magistrate may hold a court of inquiry to examine into an accusation against a person legally arrested and brought before him.

O.C.G.A. § 17-7-20 (emphasis added). The Georgia Code further provides that all offenses not included in O.C.G.A. § 17-6-1(a) are bailable by a court of inquiry. O.C.G.A. § 17-6-1(b). Consequently, because a probate court may hold a court of inquiry pursuant to O.C.G.A. § 17-7-20, it may also set bail for any criminal offense not included in O.C.G.A. § 17-6-1(a) as authorized by O.C.G.A. § 17-6-1(b).

2. Does a probate court of this state have jurisdiction in the prosecution, trial, or sentencing of one accused of violating any provision of either O.C.G.A. § 12-8-1 et seq. or § 12-9-1 et seq.?

As discussed above, the probate court is a court of limited jurisdiction as defined by the constitution and laws of the state of Georgia. The probate court's jurisdiction, as defined by law, over the prosecution, trial, or sentencing of individuals accused of violating state criminal laws is presently limited to: (1) misdemeanor violations of traffic laws where the defendant waives a jury trial (O.C.G.A. §§ 15-9-30(b)(8), 40-13-21); (2) misdemeanor violations of state fish and game laws, (excluding the statutorily enumerated exceptions), where the defendant waives a jury trial (O.C.G.A. §§ 15-9-30(b)(9), 15-9-30.3); and (3) violations of O.C.G.A. § 12-3-10 concerning acts prohibited in public parks, historic sites, or recreational areas, provided the defendant waives a jury trial (O.C.G.A. § 15-9-30.4).

Thus, because the probate court's jurisdiction over criminal trials involving violations of state law is limited as stated above, the probate court does not have jurisdiction to try or sentence an individual accused of violating the criminal provisions of O.C.G.A. § 12-8-1 et seq. concerning waste management, or O.C.G.A. § 12-9-1 et seq. concerning air pollution.

3. Does a probate court of this state have jurisdiction in the prosecution, trial, or sentencing of one accused of violating any county ordinance?

Generally, the magistrate court in each county of the state will have jurisdiction over the prosecution, trial, or sentencing of one accused of violating a county ordinance. See O.C.G.A. §§ 15-10-2(4) and 15-10-60 to 15-10-66. However, there are exceptions to this general rule found in Title 36 of the Code. For example, O.C.G.A. § 36-1-17 provides that a court having the jurisdiction of a commitment court throughout the entire county in counties having a population of 550,000 or more may exercise jurisdiction over citations issued by county employees to any person who has violated a county ordinance in effect in that county. Because the probate court may hold criminal commitment hearings pursuant to O.C.G.A. § 15-9-30(b)(10), this exception to the magistrate court's jurisdiction over violations of county ordinances applies to the probate court in the appropriate counties.

Additionally, O.C.G.A. § 36-1-20(c) provides that jurisdiction over violations of county ordinances shall be in the magistrate court of the county, with the exception of ordinances dealing with traffic offenses, which shall be in the courts having jurisdiction over state traffic offenses. Accordingly, the probate court, having jurisdiction over traffic offenses pursuant to O.C.G.A. §§ 15-9-30(b)(8) and 40-13-21, shall have jurisdiction over violations of county traffic ordinances.

4. Does a probate court of this state have authority to issue arrest warrants and require bond pursuant to O.C.G.A. § 17-6-90 or § 17-6-110?

Both of the Code Sections you have asked about in this question allow any judicial officer authorized to hold a court of inquiry to issue a "good behavior" warrant pursuant to O.C.G.A. § 17-6-90(a) or a "peace" warrant pursuant to O.C.G.A. § 17-6-110(a). As discussed in the answer to question number one above, O.C.G.A. § 17-7-20 authorizes the judge of the probate court to hold a court of inquiry. Consequently, because the probate court may hold a court of inquiry, it may also issue warrants and require bond pursuant to either O.C.G.A. § 17-6-90 or § 17-6-110.

In conclusion, it is my unofficial opinion that the probate court may set bail for criminal offenses not included in O.C.G.A. § 17-6-1(a) (which are bailable only in the superior court); the probate court does not have jurisdiction in the prosecution, trial, or sentencing one accused of violating the criminal provisions of O.C.G.A. § 12-8-1 et seq. or O.C.G.A. § 12-9-1 et seq.; the probate court does not generally have jurisdiction in the prosecution, trial, and sentencing of one accused of violating any county ordinance, but does have jurisdiction over violations of county ordinances as provided by O.C.G.A. §§ 36-1-17 and 36-1-20(c); and finally, the probate court may issue warrants and require bond pursuant to O.C.G.A. §§ 17-6-90 or 17-6-110.

Prepared by:

LEONARD C. GREGOR, JR.
Assistant Attorney General