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Unofficial Opinion 99-9

Unofficial Opinion 99-9

October 22, 1999
To: 

Executive Director
Georgia Indigent Defense Council

Re: 

Interest from cash bonds transferred by a sheriff to the appropriate clerk of court is not required to be remitted to the Georgia Indigent Defense Council unless the statute governing the particular clerk of court requires that the clerk remit interest to the Council. Also, since O.C.G.A. § 15-16-27(b) applies to cash bonds held by the sheriff, it does not apply to bonds posted by professional bondspersons.

You have asked that we provide an opinion as to whether the interest earned on cash appearance bonds filed by sheriffs with the clerks of the probate courts or the recorder's courts must be remitted to the Georgia Indigent Defense Council under O.C.G.A. § 15-16-27(b). You advise that, sometimes when sheriffs do not maintain their own accounts for cash bonds, they deposit the cash bonds with the clerks of probate or recorder's court. You also ask whether funds in a sheriff's account as a result of a professional bondsperson's actions must be remitted to the Georgia Indigent Defense Council under O.C.G.A. § 15-16-27(b). We have previously opined that "[w]hen sheriffs hold cash bonds, and when clerks of superior court, state court and magistrate court hold funds paid in for security or judicial disposition, the funds must be placed in interest-bearing trust accounts, and the interest must be remitted to the Georgia Indigent Defense Council unless otherwise provided by law." 1997 Op. Att'y Gen. U97-21.

That unofficial opinion also provided as follows:

These four Code Sections [O.C.G.A. §§ 15-6-76.1, 15-7-49, 15-10-240 and 15-16-27] are the only provisions for remitting interest to the Council. The cardinal rule of statutory interpretation is to ascertain the intent of the General Assembly, giving words their ordinary signification unless they are words of art or words connected with a particular trade or subject matter. O.C.G.A. § 1-3-1. It is also fundamental that the duties and powers of public officers and agencies are limited to those defined by law. O.C.G.A. § 45-6-5; Bentley v. State Bd. of Medical Examiners, 152 Ga. 836 (1922).

1997 Op. Att’y Gen. U97-21, p. 168 (emphasis added).

Sheriffs are authorized by statute to hold cash bonds in misdemeanor criminal cases. "Any defendant required to post bond or bail in criminal matters is authorized to post cash in the amount of the bond, OCGA § 17-6-4, . . . and sheriffs are authorized to accept bail in misdemeanor cases. OCGA § 17-6-2." Wilson v. State, 167 Ga. App. 421 (1983). Probate courts may "set bail for any criminal offense not included in O.C.G.A. § 17-6-1(a)." See 1995 Op. Att'y Gen. U95-1 (citing O.C.G.A. §§ 17-6-1, 17-7-20).

There are, apparently, a limited number of recorder's courts in Georgia. See Wojcik v. State, 260 Ga. 260 (1990). The Georgia Constitution provides that "county recorder's courts . . . shall continue with the same jurisdiction as such courts . . . have on the effective date of this article until otherwise provided by law." Ga. Const., Art. VI, Sec. X, Para. I(5). “Thus, the new Constitution does not expand the jurisdiction of recorder's courts, but rather continues their previous jurisdiction." 1983 Op. Att'y Gen. U83-41. I have seen nothing in the Code or in case law which indicates that county recorder's courts must remit interest on cash bonds from sheriffs to the Georgia Indigent Defense Counsel.

Official Code of Georgia Annotated § 15-16-27(a) provides as follows: "Unless transferred to the appropriate clerk of court, the sheriff shall deposit cash bonds held by the sheriff in one or more interest-bearing trust accounts in investments authorized by Code Section 36-80-3 or by Chapter 83 of Title 36." O.C.G.A. § 15-16-27(a) (emphasis added). The interest is to be remitted to the Georgia Indigent Defense Council. O.C.G.A. § 15-16-27(b). However, in cases where sheriffs transfer cash bonds, there is no statutory requirement that probate clerks or recorder's court clerks place the cash bonds in interest-bearing accounts and remit the interest to the Georgia Indigent Defense Council. In fact, the statute seems to be limiting because sheriffs are required to "deposit cash bonds" and remit the interest, "[u]nless transferred to the appropriate clerk of court.” Stated differently, if the cash bonds are transferred to the appropriate clerk, there appears to be no requirement that the interest be remitted to the Council unless the statute governing the particular clerk of court requires that the clerk remit interest to the Council. The General Assembly in 1993 specifically amended the statutes governing clerks of superior court, state court and magistrate courts and with respect to sheriffs who hold cash bonds to add the requirement that they must place those funds in interest-bearing trust accounts, and the interest must be remitted to the Georgia Indigent Defense Council unless otherwise provided by law. See O.C.G.A. §§ 15-6-76.1, 15-7-49, 15-10-240, 15-16-27. The General Assembly did not make this change to the statutes governing the probate courts nor have we found anything in the Code regarding county recorder's courts indicating that they must remit interest on cash bonds from sheriffs to the Georgia Indigent Defense Counsel. Therefore, it does not appear that the General Assembly intended that the probate courts and recorder's courts be included. "The General Assembly is conclusively presumed to know the law which they seek to amend, revise, repeal, or modify by a statute of limitations, and the construction of such law by our courts of last resort." Jacobs v. State, 200 Ga. 440, 444 (1946). I have seen nothing in these statutes, and nothing has been brought to my attention, indicating that the clerks of the probate courts and the recorder's courts are required to remit interest on funds deposited by sheriffs from cash bonds to the Georgia Indigent Defense Council. See O.C.G.A. §§ 15-9-1 et seq.

Finally, you asked whether funds in a sheriff's account as a result of a professional bondsperson's actions must be remitted to the Georgia Indigent Defense Council under O.C.G.A. § 15-16-27(b). "A professional bondsperson is one who holds himself or herself out as a signer or surety of bonds for compensation who must meet . . . [certain] qualifications." O.C.G.A. § 17-6-50(b). As I understand from you, professional bondspersons have a master bond with the sheriff. When the bondsperson posts bail, the transaction reduces the surety's total available bond, there is no cash transaction and the transaction is distinct from the posting of a cash bond. Compare Unif. Sup. Ct. R. 27.4(1) with 27.4(3) and Unif. Magis. Ct. R. 23.3(1) with 23.3(4). Since the statute specifies "cash bonds held by the sheriff," O.C.G.A. § 15-16-27(a), bonds posted by professional bondspersons are not included.

Therefore, it is my unofficial opinion that interest from cash bonds transferred by a sheriff to the appropriate clerk of court is not required to be remitted to the Georgia Indigent Defense Council unless the statute governing that particular clerk of court requires that the clerk remit interest to the Council. Also, since O.C.G.A. § 15-16-27(b) applies to cash bonds held by the sheriff, it does not apply to bonds posted by professional bondspersons.

Prepared by:

SHEREEN M. WALLS
Assistant Attorney General