First Substitute S.B. 173

1

COUNTY AND DISTRICT ATTORNEYS
2 1997 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Craig A. Peterson
5 AN ACT RELATING TO COUNTIES; MODIFYING THE DUTIES OF A COUNTY
6 ATTORNEY; PROHIBITING A DISTRICT ATTORNEY FROM INVESTIGATING OR
7 PROSECUTING COUNTY OFFICERS; REQUIRING THE REFERRAL OF A CRIMINAL
8 INVESTIGATION OR PROSECUTION AGAINST A COUNTY OFFICER TO OTHER
9 COUNSEL; ELIMINATING COUNTY ATTORNEY'S CRIMINAL PROSECUTION
10 RESPONSIBILITIES IN A SINGLE COUNTY PROSECUTION DISTRICT; AND MAKING
11 TECHNICAL CORRECTIONS.
12 This act affects sections of Utah Code Annotated 1953 as follows:
13 AMENDS:
14 4-2-11, as last amended by Chapter 38, Laws of Utah 1993
15 17-18-1.5, as enacted by Chapter 38, Laws of Utah 1993
16 17-18-1.7, as last amended by Chapter 302, Laws of Utah 1995
17 19-5-115, as last amended by Chapter 114, Laws of Utah 1995
18 62A-3-312, as last amended by Chapter 130, Laws of Utah 1996
19 62A-9-126, as last amended by Chapter 122, Laws of Utah 1994
20 62A-9-134, as last amended by Chapter 20, Laws of Utah 1995
21 65A-3-3, as last amended by Chapter 38, Laws of Utah 1993
22 77-10a-12, as last amended by Chapter 38, Laws of Utah 1993
23 ENACTS:
24 17-18-1.6, Utah Code Annotated 1953
25 Be it enacted by the Legislature of the state of Utah:
26 Section 1. Section 4-2-11 is amended to read:
27 4-2-11. Attorney general legal advisor for department -- County or district attorney

1 may bring action upon request of department for violations of title.
2 (1) The attorney general is the legal advisor for the department and shall defend the
3 department and its representatives in all actions and proceedings brought against it.
4 (2) The county attorney or the district attorney, as provided and as appropriate under
5 Sections 17-18-1, 17-18-1.5, 17-18-1.6, and 17-18-1.7, of the county in which a cause of action
6 arises or a public offense occurs may bring civil or criminal action, upon request of the department,
7 to enforce the laws, standards, orders, and rules of the department or to prosecute violations of this
8 title. If the county attorney or district attorney fails to act, the department may request the attorney
9 general to bring an action on behalf of the department.
10 Section 2. Section 17-18-1.5 is amended to read:
11 17-18-1.5. Powers -- Duties of county attorney within a multicounty prosecution
12 district -- Prohibitions.
13 (1) [In] This section applies to each county attorney of a county [which] that is within a
14 state prosecution district[, the] containing two or more counties.
15 (2) A county attorney is a public prosecutor only for the purpose of prosecuting violations
16 of county ordinances or as otherwise provided by law and shall:
17 (a) conduct on behalf of the county all prosecutions for violations of county ordinances
18 committed within the county;
19 (b) institute proceedings before the proper magistrate for the arrest of persons charged with
20 or reasonably suspected of violations of county ordinances when in possession of information that
21 the violation has been committed, and for that purpose shall attend court in person or by deputy
22 in cases of arrests when required; and
23 (c) [when] if it does not conflict with other official duties, attend to all legal business
24 required in the county by the attorney general without charge when the interests of the state are
25 involved.
26 [(2)] (3) The county attorney:
27 (a) may appear and prosecute in all civil cases in which the state may be interested; and
28 (b) shall render assistance as required by the attorney general in all civil cases that may
29 be appealed to the Supreme Court and shall prosecute the appeal from any violation of a county
30 ordinance.
31 [(3)] (4) The county attorney shall:

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1 (a) draw all informations for violations of a county ordinance;
2 (b) cause all persons informed against to be speedily arraigned;
3 (c) cause all witnesses for the county to be subpoenaed to appear before the court;
4 (d) upon the order of the court, institute proceedings in the name of the county for recovery
5 upon the forfeiture of any appearance or other bonds running to the county and enforce the
6 collection of them; and
7 (e) perform other duties as required by law.
8 [(4)] (5) The county attorney shall:
9 (a) receive from the clerk of the district court a record of past-due fines, penalties, costs,
10 and forfeitures and take action to collect the past due amounts;
11 (b) at the close of every term of the district court prepare a statement of all fines, penalties,
12 and forfeitures accruing to the state that have been collected or received by any officer required
13 to collect or receive them, stating each case and the amount, and shall transmit the list to the state
14 auditor; and
15 (c) proceed against any officer and sureties under this subsection for any neglect of duty.
16 [(5)] (6) The county attorney shall:
17 (a) ascertain by all practicable means what estate or property within the county has
18 escheated or reverted to the state;
19 (b) require the assessor of taxes of the county to furnish annually a list of all real or
20 personal property that may have so escheated or reverted; and
21 (c) file a copy of the list in the office of the state auditor and of the attorney general.
22 [(6)] (7) The county attorney shall:
23 (a) defend all actions brought against the county;
24 (b) prosecute all actions for the recovery of debts, fines, penalties, and forfeitures accruing
25 to the county;
26 (c) give, when required and without fee, an opinion in writing to county, district, precinct,
27 and prosecution district officers on matters relating to the duties of their respective offices;
28 (d) deliver receipts for money or property received in an official capacity and file
29 duplicates with the county treasurer; and
30 (e) on the first Monday of each month file with the auditor an account verified by oath of
31 all money received in an official capacity during the preceding month, and at the same time pay

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1 it over to the county treasurer.
2 [(7)] (8) A county attorney may not:
3 (a) in any manner consult, advise, counsel, or defend within this state any person charged
4 with any crime, misdemeanor, or breach of any penal statute or ordinance;
5 (b) be qualified to prosecute or dismiss in the name of the county any case in which the
6 county attorney has previously acted as counsel for the accused on the pending charge; or
7 (c) in any case compromise any cause or enter a nolle prosequi after the filing of an
8 information without the consent of the court.
9 [(8)] (9) The county attorney or his deputy may be sworn as a deputy district attorney for
10 the purpose of public convenience for a period of time and subject to limitations specified by the
11 district attorney.
12 Section 3. Section 17-18-1.6 is enacted to read:
13 17-18-1.6. Powers and duties of county attorney in a single county prosecution
14 district -- Prohibitions.
15 (1) This section applies to each county attorney in a county that is within a prosecution
16 district consisting of a single county.
17 (2) The county attorney shall:
18 (a) attend, without charge, to all legal business required in the county by the attorney
19 general if:
20 (i) doing so does not conflict with other official duties of the county attorney; and
21 (ii) the interests of the state are involved;
22 (b) render assistance as required by the attorney general in all civil cases appealed to the
23 Supreme Court;
24 (c) upon order of the court, institute proceedings in the name of the county for recovery
25 upon the forfeiture of an appearance or other bond running to the county and enforce the collection
26 of them;
27 (d) receive from the clerk of the district court a record of past-due fines, penalties, costs,
28 and forfeitures and take action to collect the past due amounts;
29 (e) at the close of every term of the district court, prepare a statement of all fines, penalties,
30 and forfeitures accruing to the state that have been collected or received by any officer required
31 to collect or receive them, stating each case and the amount, and transmit the list to the state

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1 auditor;
2 (f) proceed against an officer or surety for neglect of duty;
3 (g) ascertain by all practicable means what estate or property within the county has
4 escheated or reverted to the state;
5 (h) require the assessor of taxes of the county to furnish annually a list of all real or
6 personal property that has escheated or reverted to the state and file a copy of the list in the office
7 of the state auditor and of the attorney general;
8 (i) defend all actions brought against the county;
9 (j) prosecute all actions for the recovery of debts, fines, penalties, and forfeitures accruing
10 to the county;
11 (k) give, when required and without fee, an opinion in writing to county, district, precinct,
12 and prosecution district officers on matters relating to the duties of their respective offices;
13 (l) deliver receipts for money or property received in an official capacity and file
14 duplicates with the county treasurer;
15 (m) on the first Monday of each month, file with the auditor an account verified by oath
16 of all money received in an official capacity during the preceding month, and at the same time pay
17 it over to the county treasurer; and
18 (n) perform other duties as required by law.
19 (3) (a) The county attorney may appear and prosecute in all civil cases in which the state
20 may be interested.
21 (b) The county attorney or the county attorney's deputy may be sworn as a deputy district
22 attorney for the purpose of public convenience for a period of time and subject to limitations
23 specified by the district attorney.
24 Section 4. Section 17-18-1.7 is amended to read:
25 17-18-1.7. Powers -- Duties of district attorney -- Prohibitions.
26 (1) The district attorney is a public prosecutor and shall:
27 (a) appear and prosecute [in the name of] for the state in district court all violations of
28 criminal statutes of the state;
29 (b) in a prosecution district containing only one county, prosecute in the name of the
30 county each violation of a county ordinance;
31 [(b)] (c) be a full-time county officer;

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1 [(c)] (d) conduct on behalf of the state all prosecutions for public offenses committed
2 within the county, except for prosecutions undertaken by the city attorney under Section 10-3-928
3 and appeals from them; [and]
4 [(d)] (e) institute proceedings before the proper magistrate for the arrest of persons charged
5 with or reasonably suspected of any violation of state law or county ordinance when in possession
6 of information that the offense has been committed, and for that purpose shall attend court in
7 person or by deputy in cases of arrests when required[.]; and
8 [(2) The district attorney shall:]
9 [(a) appear and prosecute for the state in the district court all criminal actions for violation
10 of state law;]
11 [(b)] (f) render assistance as required by the attorney general in all criminal matters or
12 matters enumerated in Subsections [(5)] (4) and [(8)] (7) that may be appealed to the Court of
13 Appeals or the Supreme Court and shall prosecute the appeal from any crime charged by the
14 district attorney as a misdemeanor in the district court.
15 [(3)] (2) The district attorney shall:
16 (a) attend the deliberations of the grand jury;
17 (b) draw all indictments and informations for offenses against the laws of this state within
18 the county;
19 (c) cause all persons indicted or informed against to be speedily arraigned;
20 (d) cause all witnesses for the state to be subpoenaed to appear before the court or grand
21 jury;
22 (e) examine carefully into the sufficiency of all appearance bonds that may be tendered
23 to the district court of the county; and
24 (f) perform other duties as required by law.
25 [(4)] (3) The district attorney shall:
26 (a) each year on the first business day of August file a report with the attorney general
27 covering the preceding fiscal year, stating the number of criminal prosecutions in his office, the
28 character of the offenses charged, the number of convictions, the amount of fines and penalties
29 imposed, and the amount collected; and
30 (b) call attention to any defect in the operation of the laws and suggest amendments to
31 correct the defect.

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1 [(5)] (4) The district attorney shall:
2 (a) appear and prosecute for the state in the juvenile court of the prosecution district in any
3 proceeding involving delinquency;
4 (b) represent the state in any proceeding pending before the juvenile court if any rights to
5 the custody of any juvenile are asserted by any third person; and
6 (c) prosecute before the court any person charged with abuse, neglect, or contributing to
7 the delinquency or dependency of a juvenile.
8 [(6)] (5) (a) A district attorney may not:
9 [(a)] (i) engage in private practice of law;
10 [(b)] (ii) engage in any occupation that may conflict with his duties as a district attorney;
11 [(c)] (iii) in any manner consult, advise, counsel, or defend within this state any person
12 charged with any crime, misdemeanor, or breach of any penal statute or ordinance;
13 [(d)] (iv) be qualified to prosecute or dismiss in the name of the state any case in which
14 the district attorney has previously acted as counsel for the accused on the pending charge; [or]
15 [(e)] (v) in any case compromise any cause or enter a nolle prosequi after the filing of an
16 indictment or information without the consent of the court; or
17 (vi) investigate an allegation of criminal wrongdoing or prosecute a criminal action against
18 a county officer, as defined in Section 17-16-2, elected within the prosecution district.
19 (b) If a district attorney prohibited from investigating or prosecuting another county officer
20 under Subsection (5)(a)(vi) receives information that raises a reasonable suspicion that an elected
21 county officer committed a criminal offense, the district attorney shall:
22 (i) refer the investigation or prosecution to:
23 (A) a county or district attorney outside the prosecution district; or
24 (B) the attorney general; or
25 (ii) request the supervising judge to appoint a special prosecutor under Section 77-10a-12.
26 (c) If an ongoing investigation under the direction of a district attorney raises a reasonable
27 suspicion that a county officer, whom the district attorney is prohibited from investigating or
28 prosecuting under Subsection (5)(a)(vi), committed a criminal offense, the district attorney shall,
29 as soon as possible without jeopardizing the ongoing investigation, transfer supervisory authority
30 over the investigation as provided in Subsection (5)(b).
31 (d) For purposes of S [this Subsection] SUBSECTIONS s (5) S (a)(vi),(b), AND (c) s , the
31a term "criminal" does not include a violation
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1 of Title 41, Chapter 6, Traffic Rules and Regulations, that is an infraction or a class C
2 misdemeanor.
3 [(7)] (6) If at any time after investigation by the district judge involved, the judge finds
4 and recommends that the district attorney in any prosecution district is unable to satisfactorily and
5 adequately perform the duties in prosecuting a criminal case without additional legal assistance,
6 the attorney general shall provide the additional assistance.
7 [(8)] (7) The district attorney may act as counsel to any state or local government agency
8 or entity regarding only the following matters of civil law:
9 (a) bail bond forfeiture actions;
10 (b) actions for the forfeiture of property or contraband because of misuse of the property
11 or possession of the contraband in violation of criminal statutes of the state;
12 (c) civil actions incidental to or appropriate to supplement the district attorney's duties as
13 state prosecuting attorney including injunction, habeas corpus, declaratory actions, and
14 extraordinary writ actions, in which the interests of the state in any criminal prosecution or
15 investigation may be affected; and
16 (d) any civil duties otherwise provided by statute.
17 [(9)] (8) The district attorney or his deputy may be sworn as a deputy county attorney for
18 the purpose of public convenience for a period of time and subject to limitations specified by the
19 county attorney.
20 Section 5. Section 19-5-115 is amended to read:
21 19-5-115. Violations -- Penalties -- Civil actions by board -- Ordinances and rules of
22 political subdivisions.
23 (1) Any person who violates this chapter, or any permit, rule, or order adopted under it,
24 upon a showing that the violation occurred, is subject in a civil proceeding to a civil penalty not
25 to exceed $10,000 per day of violation.
26 (2) (a) A fine not exceeding $25,000 per day shall be assessed against any person who
27 willfully or with gross negligence:
28 (i) discharges pollutants in violation of Subsection 19-5-107 (1) or in violation of any
29 condition or limitation included in a permit issued under Subsection 19-5-107 (3);
30 (ii) violates Section 19-5-113;
31 (iii) violates a pretreatment standard or toxic effluent standard for publicly owned

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1 treatment works; or
2 (iv) manages sewage sludge in violation of this chapter or rules adopted under it.
3 (b) Any person twice convicted under this subsection shall be punished by a fine not
4 exceeding $50,000 per day of violation.
5 (3) Any person who knowingly makes a false statement, representation, or certification
6 in any application, record, report, plan, or other document filed or required to be maintained under
7 this chapter, or by any permit, rule, or order issued under it, or who falsifies, tampers with, or
8 knowingly renders inaccurate any monitoring device or method required to be maintained under
9 this chapter shall be punished by a fine not exceeding $10,000 or by imprisonment for not more
10 than six months, or by both.
11 (4) (a) The board may begin a civil action for appropriate relief, including a permanent or
12 temporary injunction, for any violation or threatened violation for which it is authorized to issue
13 a compliance order under Section 19-5-111.
14 (b) Actions shall be brought in the district court where the violation or threatened violation
15 occurs.
16 (5) (a) The attorney general is the legal advisor for the board and its executive secretary
17 and shall defend them in all actions or proceedings brought against them.
18 (b) The county attorney or district attorney, as appropriate under Sections 17-18-1,
19 17-18-1.5, 17-18-1.6, and 17-18-1.7, in the county in which a cause of action arises, shall bring
20 any action, civil or criminal, requested by the board, to abate a condition that exists in violation
21 of, or to prosecute for the violation of, or to enforce, the laws or the standards, orders, and rules
22 of the board or the executive secretary issued under this chapter.
23 (c) The board may itself initiate any action under this section and be represented by the
24 attorney general.
25 (6) If any person fails to comply with a cease and desist order that is not subject to a stay
26 pending administrative or judicial review, the board may, through its executive secretary, initiate
27 an action for and be entitled to injunctive relief to prevent any further or continued violation of the
28 order.
29 (7) Any political subdivision of the state may enact and enforce ordinances or rules for the
30 implementation of this chapter that are not inconsistent with this chapter.
31 (8) (a) Except as provided in Subsection (b), all penalties assessed and collected under the

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1 authority of this section shall be deposited in the General Fund.
2 (b) The department may reimburse itself and local governments from monies collected
3 from civil penalties for extraordinary expenses incurred in environmental enforcement activities.
4 (c) The department shall regulate reimbursements by making rules that:
5 (i) define qualifying environmental enforcement activities; and
6 (ii) define qualifying extraordinary expenses.
7 Section 6. Section 62A-3-312 is amended to read:
8 62A-3-312. Enforcement by division -- Duty of county or district attorney.
9 (1) The division may take action as may be necessary to enforce the provisions of this part.
10 It is the duty of the county or district attorney, as appropriate under Sections 17-18-1, 17-18-1.5,
11 17-18-1.6, and 17-18-1.7, to assist and represent the division in that action, and to initiate legal
12 proceedings and take appropriate action to prosecute the alleged offender.
13 (2) When the county or district attorney fails to act upon the request of the division within
14 30 days of the request, the division may request the attorney general to act and, in his discretion,
15 he may assume the responsibilities and carry the action forward in place of the county or district
16 attorney.
17 Section 7. Section 62A-9-126 is amended to read:
18 62A-9-126. Enforcement of provisions -- County attorney or district attorney --
19 Attorney general.
20 At the request of the office, it is the duty of the county attorney or district attorney, as
21 appropriate under Sections 17-18-1, 17-18-1.5, 17-18-1.6, and 17-18-1.7, and the attorney general
22 to represent the office in any legal action taken under this chapter or under Title 76, Chapter 8, Part
23 12, Public Assistance Fraud.
24 Section 8. Section 62A-9-134 is amended to read:
25 62A-9-134. County attorney, district attorney, and attorney general responsibilities.
26 It is the duty of each county attorney under Sections 17-18-1 [and] 17-18-1.5, and
27 17-18-1.6, of each district attorney under Section 17-18-1.7, and of the attorney general to carry
28 out the mandates set forth in this chapter.
29 Section 9. Section 65A-3-3 is amended to read:
30 65A-3-3. Enforcement of laws on state lands -- County attorney or district attorney
31 to prosecute.

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1 (1) It is the duty of the division, county sheriffs, their deputies, police officers, and other
2 law enforcement officers within their jurisdiction to enforce the provisions of this chapter and to
3 investigate and gather evidence that may indicate a violation under this chapter.
4 (2) The county attorney or district attorney, as appropriate under Sections 17-18-1,
5 17-18-1.5, 17-18-1.6, and 17-18-1.7, shall prosecute any criminal violations of this chapter and
6 shall initiate a civil action to recover suppression costs incurred by the county or state for
7 suppression of fire on private land.
8 Section 10. Section 77-10a-12 is amended to read:
9 77-10a-12. Representation of state -- Appointment and compensation of special
10 prosecutor.
11 (1) The state may be represented before any grand jury summoned in the state by the
12 attorney general and his assistants, county attorney or district attorney and his deputies, and
13 special prosecutors appointed under this chapter and their assistants.
14 (2) (a) The supervising judge shall determine if a special prosecutor is necessary. [He]
15 Subject to Subsection (2)(b), the supervising judge may appoint a special prosecutor only upon
16 good cause shown and after making a written finding that a conflict of interest exists in the office
17 of the attorney general or the office of the county attorney or district attorney who would otherwise
18 represent the state before the grand jury.
19 (b) Notwithstanding Subsection (2)(a), the supervising judge shall appoint a special
20 prosecutor if requested by a district attorney under Subsection 17-18-1.7(5)(b).
21 (3) In selecting a special prosecutor, the supervising judge shall give preference to the
22 attorney general and his assistants, and the county attorney or district attorney and his deputies.
23 (4) (a) The compensation of a special prosecutor appointed under this chapter who is an
24 employee of the Office of the Attorney General or the office of a county attorney or district
25 attorney is only the current compensation he receives in that office.
26 (b) The compensation for an appointed special prosecutor who is not an employee of a
27 prosecutorial office under Subsection (4)(a) shall be comparable to the compensation of a deputy
28 or assistant attorney general having similar experience to that of the special prosecutor.

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