Before an indictment charging any state official with violating subsection (b) of Code Section 45-11-4 is presented to a grand jury, the district attorney of the county where the grand jury will convene shall notify the Attorney General of such contemplated action.
(Ga. L. 1943, p. 284, § 7; Ga. L. 2001, p. 487, § 4.)
Editor's notes.- Ga. L. 2001, p. 487, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Corruption Prevention Act.'"
Ga. L. 2001, p. 487, § 6, not codified by the General Assembly, provides that the provisions of Sections 3 and 4 of the Act shall apply to crimes committed before, on, and after April 20, 2001.
Law reviews.- For article, "Georgia Local Government Officials and the Grand Jury," see 26 Ga. St. B.J. 50 (1989). For article, "Local Government Law," see 53 Mercer L. Rev. 389 (2001).
JUDICIAL DECISIONS
Applicability.
- Ga. L. 1943, p. 284, § 7 (see now O.C.G.A. § 45-15-11) uses the words "any state official," manifestly intending that the class of persons to whom the procedural safeguards of former Code 1933, §§ 89-9907 and 89-9908 (see now O.C.G.A. § 45-11-4) were to be extended should be one broader than that of elected state officers, that is, that persons other than elected state officers are state officers. Cadle v. State, 101 Ga. App. 175, 113 S.E.2d 180 (1960).
Ga. L. 1943, p. 284, § 7 (see now O.C.G.A. § 45-15-11) was enacted pursuant to the provisions of former Code 1933, §§ 89-9907 and 89-9908 (see now O.C.G.A. § 45-11-4), and was applicable only to state officials who hold an office created under the Constitution or laws of this state. Jones v. Mills, 216 Ga. 616, 118 S.E.2d 484 (1961).
O.C.G.A.
§ 45-15-11 inapplicable to official resigning position prior to indictment. - As O.C.G.A. § 45-15-11 applies to state officials, a court clerk who resigned post prior to the institution of any proceedings against the clerk is not covered. To be eligible for the provisions of § 45-15-11, a party must be a state official when an indictment is presented. Axson v. State, 174 Ga. App. 236, 329 S.E.2d 566 (1985).
O.C.G.A.
§ 45-15-11 inapplicable to superior court clerk. - When the defendant, the duly elected clerk of the superior court of Glynn county, was indicted, based on allegations that the defendant had unlawfully obtained or misappropriated funds belonging to the county, and the defendant moved to dismiss the indictment on the ground that the state had violated the defendant's rights under O.C.G.A. § 45-15-11 by failing to serve the defendant with a copy of the indictment prior to its presentment to the grand jury, by not allowing the defendant to be present during the grand jury proceedings, and by not allowing defendant to make a sworn statement at the conclusion of the state's presentation of its evidence to the grand jury, the trial court properly denied the motion, since the clerk of the superior court is specifically classified as a county officer under the present Georgia Constitution, and is not entitled to any of the procedures of O.C.G.A. §§ 45-11-4 and O.C.G.A. § 45-15-11. Tostensen v. State, 190 Ga. App. 423, 379 S.E.2d 9, cert. denied, 190 Ga. App. 899, 379 S.E.2d 9 (1989).
Whether defendant was a "state official" under Ga. L. 1943, p. 284, § 7 (see now O.C.G.A. § 45-15-11) depends upon defendant's duties, not upon what defendant was called, and when the indictment charges that defendant was to "counsel and command" employees of the state to engage in political activity, instead of their public duties, it thus alleged, at least by clear implication, that the defendant was not a mere employee but an official in charge of and having authority to command employees of the state; thus, under former Code 1933, §§ 89-9907 and 89-9908 (see now O.C.G.A. § 45-11-4), the defendant was entitled to the right of appearing before and being heard by the grand jury, together with the defendant's witnesses. Cadle v. State, 101 Ga. App. 175, 113 S.E.2d 180 (1960).
Designation not creating office or official.
- Although under the authority delegated to the State Revenue Commissioner of the Department of Revenue of the State of Georgia, the Commissioner may, for any reason satisfactory to himself, designate a person as "director" of some "tax unit," such designation cannot create an office or official, and the person so designated is not a state official or public official within the terms and provisions of this section. Jones v. Mills, 216 Ga. 616, 118 S.E.2d 484 (1961).
Since under the Constitution and laws of this state, there is no such office, and no such official as "Director of the Motor Fuel Tax Unit of the Department of Revenue of the State of Georgia," and under the applicable rules of law, there has been no oath of office administered by the Governor, nor any commission issued by the Governor, to any such officer pursuant to O.C.G.A. §§ 45-3-30 and45-3-31, petitioner holding such office was not entitled to the rights provided by Ga. L. 1943, p. 284, § 7 (see now O.C.G.A. § 45-15-11). Jones v. Mills, 216 Ga. 616, 118 S.E.2d 484 (1961).
When the special presentment in a conspiracy to defraud a county case does not charge a superior court judge with malfeasance or malpractice in office, the judge was not entitled, merely by virtue of the fact that the judge occupied a high office in the state, to the special privileges accorded the holders of such offices under the provisions of this section. Clinkscales v. State, 102 Ga. App. 670, 117 S.E.2d 229 (1960).
A councilman of a municipality in Georgia is simply not one of the officials covered by this section. Humphrey v. State, 231 Ga. 855, 204 S.E.2d 603, cert. denied, 419 U.S. 839, 95 S. Ct. 68, 42 L. Ed. 2d 66 (1974).
Misfeasance in office.
- False swearing in connection with the collection of criminal fees would fall into the category of misfeasance or malfeasance by a justice of the peace. Fancher v. State, 113 Ga. App. 195, 147 S.E.2d 463 (1966).
Cited in Sweeney v. Balkcom, 219 Ga. 292, 133 S.E.2d 10 (1963); Wood v. State, 219 Ga. 509, 134 S.E.2d 8 (1963); Lowndes County v. Dasher, 229 Ga. 289, 191 S.E.2d 82 (1972); White v. State, 132 Ga. App. 62, 207 S.E.2d 577 (1974); White v. State, 233 Ga. 593, 212 S.E.2d 777 (1975); Orkin v. State, 236 Ga. 176, 223 S.E.2d 61 (1976); Mize v. State, 152 Ga. App. 190, 262 S.E.2d 492 (1979); Thompson v. Macon-Bibb County Hosp. Auth., 246 Ga. 777, 273 S.E.2d 19 (1980); McWilliams v. State, 177 Ga. App. 447, 339 S.E.2d 721 (1985).
RESEARCH REFERENCES
Am. Jur. 2d.
- 7 Am. Jur. 2d, Attorney General, § 32.
C.J.S.- 7A C.J.S., Attorney General, §§ 37-39.
ALR.- Validity and construction of statutes permitting grand jury witnesses to be accompanied by counsel, 90 A.L.R.3d 1340.