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Unofficial Opinion 96-8

Unofficial Opinion 96-8

April 9, 1996
To: 

President
Council of Probate Judges

Re: 

Priority of payment of surcharges to and deductions from fines and forfeitures imposed in traffic cases.

In your letter, you have asked several questions regarding the proper method for allocating various statutory fees and penalties which are in addition to, or part of, fines imposed in particular cases. I will attempt to address each of your concerns in order.

First, you have asked whether the sums provided for by certain provisions are to be added to a fine or bond forfeiture and, if so, should they also be added to the bail bond required of the defendant. The first such provision is the Peace Officer and Prosecutor Training Fund. Under Georgia law, this fund is to receive the sum of $50.00 or ten percent of the original fine, whichever is less. It is clear that this sum is an additional penalty which is to be added to the fine. O.C.G.A. § 15-21-73(a)(1). It is equally clear that this sum is also to be added to the amount of any bail or bond established by the court. O.C.G.A. § 15-21-73(a)(2).

Secondly, you ask the same questions with regard to the Jail Construction and Staffing Fund. Assuming that this fund is applicable to the jurisdiction (unlike other provisions mentioned, this fund is applicable only when the governing authority of the county has adopted a resolution placing the article in effect), this fund is to receive ten percent of the original fine. It is clear that this sum is an additional penalty which is to be added to the fine. O.C.G.A. § 15-21-93(a)(1). It is equally clear that this sum is also to

be added to the amount of any bail or bond established by the court. O.C.G.A. § 15-21-93(a)(2). See also 1990 Op. Att'y Gen. U90-4.

The Georgia Crime Victims Emergency Fund is funded by a surcharge on fines imposed upon those convicted of driving under the influence as prohibited by O.C.G.A. § 40-6-391 or a local ordinance which adopts those provisions by reference. Under Georgia law, this fund is to receive the sum of $25.00 or ten percent of the original fine, whichever is less. It is clear that this sum is an additional penalty which is to be added to the fine. O.C.G.A. § 15-21-112(a). In contrast to the provisions previously addressed, no provision is made for the assessment of this surcharge when bail or bond is posted.

Finally, Georgia law provides for the funding of a county law library by the provision of surcharges. Before such surcharges are applicable, however, the chief judge of the superior court of the circuit in which the county is located must first determine that there is a need for a county law library. Once the chief judge has made that determination, he is to establish the amount of the surcharge, not to exceed $5.00, which is to be applied to every civil and criminal action by all of the courts in the county. O.C.G.A. § 36-15-9(a). This provision is applicable to the probate courts. 1988 Op. Att'y Gen. U88-3. The statute is clear that this is a charge in addition to the fine. O.C.G.A. § 36-15-9(a).

You have also questioned the manner in which funds should be disbursed in the event of partial or installment payments. Specifically, you have asked whether or not the Clerk should disburse the funds on a priority basis, to each fund in a proportional amount as collected, or held until all funds are received and then disbursed on a proportional basis (in the event all sums are not collected).

The statute governing the county law library provides that these funds, if applicable, are to be disbursed to the treasurer of the county law library on the first day of each month. O.C.G.A. § 36-15-9(a). If, in a criminal case, the costs are not collected, this sum is to be paid "from the fines and forfeitures fund of the court in which the case is filed, before any other disbursement or distribution of such fines or forfeitures is made." Id. Thus, it is my conclusion that priority must be given, and initial disbursement made, to this fund.

The governing statutes regulating the other Funds each provide for prompt payment of sums collected. O.C.G.A. § 15-21-74 (Peace Officer and Prosecutor Training Fund; to be paid by the last day of the month following collection to the Commissioner of Revenue for deposit into the general treasury); O.C.G.A. § 15-21-94 (Jail Construction and Staffing Fund; to be paid by the tenth day of the month following collection to the governing authority of the county); O.C.G.A. § 15-21-113 (Crime Victims Emergency Fund; to be paid by the last day of the month following collection to the Georgia Crime Victims Compensation Board). Thus, it is my conclusion that the statutes in question obligate disbursement as funds are received, and do not authorize disbursement only after the entire fine and surcharges have been collected, or once it is apparent that further collection efforts are fruitless.

There is no statutory system of priorities applicable to probate courts which would be comparable to the provisions of O.C.G.A. § 15-6-95, which is applicable to clerks of the superior courts. Therefore, in the absence of any system of priorities established by law (with the exception of the county law library fund, discussed infra), it is my unofficial opinion that the sums collected should be paid to each fund in a proportional amount to the sums collected as each payment is received.

Next, you have posed similar questions in regard to the Probate Court Judges' Retirement Fund, Peace Officers' Annuity and Benefit Fund, and the Sheriffs' Retirement Fund. You have asked whether these funds are to be funded by surcharges from the fines imposed, or whether the sums are to be deducted from the fine as originally set.

Under Georgia law, the amount to be collected for the Probate Court Judges' Retirement Fund is to be based upon the amount of the fine or bond forfeiture. O.C.G.A. § 47-11-51(a). The statute speaks of "collecting" the appropriate sum. Id. These sums are not court costs. 1972 Op. Att'y Gen. 72-29. This sum is to be paid to the Board of Commissioners of the Judges of the Probate Courts Retirement Fund of Georgia on or before the twentieth day of the month after collection. O.C.G.A. § 47-11-51(c)(1). Further, this sum is to be paid to the Board before the payment of any cost or claims "against such fine or forfeiture." O.C.G.A. § 47-11-51(b). Therefore, it is my conclusion that this amount is a part of the fine or bond forfeiture, and is to be deducted from it, rather than a surcharge imposed in addition to the fine itself. The statute

requires payment of this sum to be the priority payment from the monies allocated to payment of the fine itself.

The amount to be collected for the Peace Officers' Annuity and Benefit Fund is likewise based upon the amount of the fine or bond forfeiture. O.C.G.A. § 47-17-60(a). The statute speaks of "collecting" the appropriate sum. Id. These sums are not court costs. 1972 Op. Att'y Gen. 72-29. This sum is to be paid to the secretary-treasurer of the Peace Officers' Annuity and Benefit Fund on or before the first day of the month after collection. O.C.G.A. § 47-17-60(a). Further, this sum is to be paid to the secretary-treasurer before the payment of any cost or claims "against such fine or forfeiture." O.C.G.A. § 47-17-60(a). Therefore, it is my conclusion that this amount is a part of the fine or bond forfeiture, and is to be deducted from it, rather than a surcharge imposed in addition to the fine itself. This statute, like the Probate Court Judges' Retirement Fund statute, requires that payment of this sum be a priority payment from the monies allocated to payment of the fine itself. In the event the portion of the partial payment allocable to the fine or forfeiture is not adequate to pay the sums due each fund, the entire sum of this portion must be allocated between these funds and disbursed accordingly until these obligations are satisfied.

Finally, the amount to be collected for the Sheriffs' Retirement Fund is established at a flat rate of $2.00, as long as the amount of the fine or bond exceeds $5.00. O.C.G.A. § 47-16-60(a). The statute indicates that this sum is to be "allocated" from each fine or bond. Id. These sums are not court costs. 1972 Op. Att'y Gen. 72-29. This sum is to be paid to the secretary-treasurer of the Sheriffs' Retirement Fund on a quarterly basis, or as the Board may otherwise require. O.C.G.A. § 47-16-60(a). Further, this sum is to be paid to the secretary-treasurer before the payment of any cost or claims "against such fine or forfeiture." O.C.G.A. § 47-16-60(a). Therefore, it is my conclusion that this amount is a part of the fine or bond forfeiture, and is to be deducted from it, rather than a surcharge imposed in addition to the fine itself. As with the two preceding retirement fund statutes, payment of this sum must be a priority payment from the monies allocated to payment of the fine itself. In the event the portion of the partial payment allocable to the fine or forfeiture is not adequate to pay the sums due each fund, the entire sum of this portion must be allocated between these funds and disbursed accordingly until these obligations are satisfied.

In sum, it is my unofficial opinion that payments for the Peace Officer and Prosecutor Training Fund, the Jail Construction and Staffing Fund, the Georgia Crime Victims Emergency Fund, and the County Law Library Fund are surcharges which must be added, as applicable, to the amount of the fine originally established by the court. In the case of partial or installment payments, those payments must be allocated proportionally between money attributable to the fine and to these surcharges, and the amount applicable to these surcharges should be allocated proportionally to the various funds as provided by law. It is further my unofficial opinion that the sums due to the Probate Court Judges' Retirement Fund, the Peace Officers' Annuity and Benefit Fund, and the Sheriffs' Retirement Fund are to be deducted from the fines and forfeitures established by the court, rather than being added to that amount as surcharges. In the case of partial or installment payments, the amount of the payment allocable to the fine or forfeiture must be dedicated to the contributions due these funds prior to any such monies being forwarded to the county governing authority as payments of fines or forfeitures.

Prepared by:

NEAL B. CHILDERS
Senior Assistant Attorney General