Second Substitute S.B. 173

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COUNTY AND DISTRICT ATTORNEYS
2 1997 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Craig A. Peterson
5 AN ACT RELATING TO COUNTIES; PROHIBITING A COUNTY ATTORNEY AND A
6 DISTRICT ATTORNEY FROM INVESTIGATING OR PROSECUTING COUNTY
7 OFFICERS; REQUIRING THE REFERRAL OF A CRIMINAL INVESTIGATION OR
8 PROSECUTION AGAINST A COUNTY OFFICER TO OTHER COUNSEL; AND MAKING
9 TECHNICAL CORRECTIONS.
10 This act affects sections of Utah Code Annotated 1953 as follows:
11 AMENDS:
12 17-18-1.5, as enacted by Chapter 38, Laws of Utah 1993
13 17-18-1.7, as last amended by Chapter 302, Laws of Utah 1995
14 77-10a-12, as last amended by Chapter 38, Laws of Utah 1993
15 Be it enacted by the Legislature of the state of Utah:
16 Section 1. Section 17-18-1.5 is amended to read:
17 17-18-1.5. Powers -- Duties of county attorney within a multicounty prosecution
18 district -- Prohibitions.
19 (1) [In each county which is within a state prosecution district, the] A county attorney of
20 a county that is within a state prosecution district is a public prosecutor only for the purpose of
21 prosecuting violations of county ordinances or as otherwise provided by law and shall:
22 (a) conduct on behalf of the county all prosecutions for violations of county ordinances
23 committed within the county;
24 (b) institute proceedings before the proper magistrate for the arrest of persons charged with
25 or reasonably suspected of violations of county ordinances when in possession of information that
26 the violation has been committed, and for that purpose shall attend court in person or by deputy
27 in cases of arrests when required; and

1 (c) [when] if it does not conflict with other official duties, attend to all legal business
2 required in the county by the attorney general without charge when the interests of the state are
3 involved.
4 (2) The county attorney:
5 (a) may appear and prosecute in all civil cases in which the state may be interested; and
6 (b) shall render assistance as required by the attorney general in all civil cases that may
7 be appealed to the Supreme Court and shall prosecute the appeal from any violation of a county
8 ordinance.
9 (3) The county attorney shall:
10 (a) draw all informations for violations of a county ordinance;
11 (b) cause all persons informed against to be speedily arraigned;
12 (c) cause all witnesses for the county to be subpoenaed to appear before the court;
13 (d) upon the order of the court, institute proceedings in the name of the county for recovery
14 upon the forfeiture of any appearance or other bonds running to the county and enforce the
15 collection of them; and
16 (e) perform other duties as required by law.
17 (4) The county attorney shall:
18 (a) receive from the clerk of the district court a record of past-due fines, penalties, costs,
19 and forfeitures and take action to collect the past due amounts;
20 (b) at the close of every term of the district court prepare a statement of all fines, penalties,
21 and forfeitures accruing to the state that have been collected or received by any officer required
22 to collect or receive them, stating each case and the amount, and shall transmit the list to the state
23 auditor; and
24 (c) proceed against any officer and sureties under this subsection for any neglect of duty.
25 (5) The county attorney shall:
26 (a) ascertain by all practicable means what estate or property within the county has
27 escheated or reverted to the state;
28 (b) require the assessor of taxes of the county to furnish annually a list of all real or
29 personal property that may have so escheated or reverted; and
30 (c) file a copy of the list in the office of the state auditor and of the attorney general.
31 (6) The county attorney shall:

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1 (a) defend all actions brought against the county;
2 (b) prosecute all actions for the recovery of debts, fines, penalties, and forfeitures accruing
3 to the county;
4 (c) give, when required and without fee, an opinion in writing to county, district, precinct,
5 and prosecution district officers on matters relating to the duties of their respective offices;
6 (d) deliver receipts for money or property received in an official capacity and file
7 duplicates with the county treasurer; and
8 (e) on the first Monday of each month file with the auditor an account verified by oath of
9 all money received in an official capacity during the preceding month, and at the same time pay
10 it over to the county treasurer.
11 (7) (a) A county attorney may not:
12 [(a)] (i) in any manner consult, advise, counsel, or defend within this state any person
13 charged with any crime, misdemeanor, or breach of any penal statute or ordinance;
14 [(b)] (ii) be qualified to prosecute or dismiss in the name of the county any case in which
15 the county attorney has previously acted as counsel for the accused on the pending charge; [or]
16 [(c)] (iii) in any case compromise any cause or enter a nolle prosequi after the filing of an
17 information without the consent of the court[.]; or
18 (iv) investigate an allegation of criminal wrongdoing or prosecute a criminal action against
19 a county officer, as defined in Section 17-16-2, elected within the prosecution district.
20 (b) If a county attorney prohibited from investigating or prosecuting another county officer
21 under Subsection (7)(a)(iv) receives information that raises a reasonable suspicion that an elected
22 county officer committed a criminal offense, the county attorney shall:
23 (i) refer the investigation or prosecution to:
24 (A) a county or district attorney outside the prosecution district; or
25 (B) the attorney general; or
26 (ii) request the supervising judge to appoint a special prosecutor under Section 77-10a-12.
27 (c) If an ongoing investigation under the direction of a county attorney raises a reasonable
28 suspicion that a county officer, whom the county attorney is prohibited from investigating or
29 prosecuting under Subsection (7)(a)(iv), committed a criminal offense, the county attorney shall,
30 as soon as possible without jeopardizing the ongoing investigation, transfer supervisory authority
31 over the investigation as provided in Subsection (7)(b).

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1 (8) The county attorney or his deputy may be sworn as a deputy district attorney for the
2 purpose of public convenience for a period of time and subject to limitations specified by the
3 district attorney.
4 Section 2. Section 17-18-1.7 is amended to read:
5 17-18-1.7. Powers -- Duties of district attorney -- Prohibitions.
6 (1) The district attorney is a public prosecutor and shall:
7 (a) appear and prosecute [in the name of] for the state all violations of criminal statutes
8 of the state;
9 (b) be a full-time county officer;
10 (c) conduct on behalf of the state all prosecutions for public offenses committed within
11 the county, except for prosecutions undertaken by the city attorney under Section 10-3-928 and
12 appeals from them; [and]
13 (d) institute proceedings before the proper magistrate for the arrest of persons charged with
14 or reasonably suspected of any violation of state law when in possession of information that the
15 offense has been committed, and for that purpose shall attend court in person or by deputy in cases
16 of arrests when required[.]; and
17 [(2) The district attorney shall:]
18 [(a) appear and prosecute for the state in the district court all criminal actions for violation
19 of state law;]
20 [(b)] (e) render assistance as required by the attorney general in all criminal matters or
21 matters enumerated in Subsections [(5)] (4) and [(8)] (7) that may be appealed to the Court of
22 Appeals or the Supreme Court and shall prosecute the appeal from any crime charged by the
23 district attorney as a misdemeanor in the district court.
24 [(3)] (2) The district attorney shall:
25 (a) attend the deliberations of the grand jury;
26 (b) draw all indictments and informations for offenses against the laws of this state within
27 the county;
28 (c) cause all persons indicted or informed against to be speedily arraigned;
29 (d) cause all witnesses for the state to be subpoenaed to appear before the court or grand
30 jury;
31 (e) examine carefully into the sufficiency of all appearance bonds that may be tendered

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1 to the district court of the county; and
2 (f) perform other duties as required by law.
3 [(4)] (3) The district attorney shall:
4 (a) each year on the first business day of August file a report with the attorney general
5 covering the preceding fiscal year, stating the number of criminal prosecutions in his office, the
6 character of the offenses charged, the number of convictions, the amount of fines and penalties
7 imposed, and the amount collected; and
8 (b) call attention to any defect in the operation of the laws and suggest amendments to
9 correct the defect.
10 [(5)] (4) The district attorney shall:
11 (a) appear and prosecute for the state in the juvenile court of the prosecution district in any
12 proceeding involving delinquency;
13 (b) represent the state in any proceeding pending before the juvenile court if any rights to
14 the custody of any juvenile are asserted by any third person; and
15 (c) prosecute before the court any person charged with abuse, neglect, or contributing to
16 the delinquency or dependency of a juvenile.
17 [(6)] (5) (a) A district attorney may not:
18 [(a)] (i) engage in private practice of law;
19 [(b)] (ii) engage in any occupation that may conflict with his duties as a district attorney;
20 [(c)] (iii) in any manner consult, advise, counsel, or defend within this state any person
21 charged with any crime, misdemeanor, or breach of any penal statute or ordinance;
22 [(d)] (iv) be qualified to prosecute or dismiss in the name of the state any case in which
23 the district attorney has previously acted as counsel for the accused on the pending charge; [or]
24 [(e)] (v) in any case compromise any cause or enter a nolle prosequi after the filing of an
25 indictment or information without the consent of the court; or
26 (vi) investigate an allegation of criminal wrongdoing or prosecute a criminal action against
27 a county officer, as defined in Section 17-16-2, elected within the prosecution district.
28 (b) If a district attorney prohibited from investigating or prosecuting another county officer
29 under Subsection (5)(a)(vi) receives information that raises a reasonable suspicion that an elected
30 county officer committed a criminal offense, the district attorney shall:
31 (i) refer the investigation or prosecution to:

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1 (A) a county or district attorney outside the prosecution district; or
2 (B) the attorney general; or
3 (ii) request the supervising judge to appoint a special prosecutor under Section 77-10a-12.
4 (c) If an ongoing investigation under the direction of a district attorney raises a reasonable
5 suspicion that a county officer, whom the district attorney is prohibited from investigating or
6 prosecuting under Subsection (5)(a)(vi), committed a criminal offense, the district attorney shall,
7 as soon as possible without jeopardizing the ongoing investigation, transfer supervisory authority
8 over the investigation as provided in Subsection (5)(b).
9 (d) For purposes of Subsections (5)(a)(vi), (b), and (c), the term "criminal" does not
10 include a violation of Title 41, Chapter 6, Traffic Rules and Regulations, that is an infraction or
11 a class C misdemeanor.
12 [(7)] (6) If at any time after investigation by the district judge involved, the judge finds
13 and recommends that the district attorney in any prosecution district is unable to satisfactorily and
14 adequately perform the duties in prosecuting a criminal case without additional legal assistance,
15 the attorney general shall provide the additional assistance.
16 [(8)] (7) The district attorney may act as counsel to any state or local government agency
17 or entity regarding only the following matters of civil law:
18 (a) bail bond forfeiture actions;
19 (b) actions for the forfeiture of property or contraband because of misuse of the property
20 or possession of the contraband in violation of criminal statutes of the state;
21 (c) civil actions incidental to or appropriate to supplement the district attorney's duties as
22 state prosecuting attorney including injunction, habeas corpus, declaratory actions, and
23 extraordinary writ actions, in which the interests of the state in any criminal prosecution or
24 investigation may be affected; and
25 (d) any civil duties otherwise provided by statute.
26 [(9)] (8) The district attorney or his deputy may be sworn as a deputy county attorney for
27 the purpose of public convenience for a period of time and subject to limitations specified by the
28 county attorney.
29 Section 3. Section 77-10a-12 is amended to read:
30 77-10a-12. Representation of state -- Appointment and compensation of special
31 prosecutor.

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1 (1) The state may be represented before any grand jury summoned in the state by the
2 attorney general and his assistants, county attorney or district attorney and his deputies, and
3 special prosecutors appointed under this chapter and their assistants.
4 (2) (a) The supervising judge shall determine if a special prosecutor is necessary. [He]
5 Subject to Subsection (2)(b), the supervising judge may appoint a special prosecutor only upon
6 good cause shown and after making a written finding that a conflict of interest exists in the office
7 of the attorney general or the office of the county attorney or district attorney who would otherwise
8 represent the state before the grand jury.
9 (b) Notwithstanding Subsection (2)(a), the supervising judge shall appoint a special
10 prosecutor if requested by a county attorney under Subsection 17-18-1.5(7)(b)(ii) or a district
11 attorney under Subsection 17-18-1.7(5)(b).
12 (3) In selecting a special prosecutor, the supervising judge shall give preference to the
13 attorney general and his assistants, and the county attorney or district attorney and his deputies.
14 (4) (a) The compensation of a special prosecutor appointed under this chapter who is an
15 employee of the Office of the Attorney General or the office of a county attorney or district
16 attorney is only the current compensation he receives in that office.
17 (b) The compensation for an appointed special prosecutor who is not an employee of a
18 prosecutorial office under Subsection (4)(a) shall be comparable to the compensation of a deputy
19 or assistant attorney general having similar experience to that of the special prosecutor.

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