Mississippi Advisory Opinions January 31, 2014: AGO 2014-00032 (January 31, 2014)

Advisory Opinion Text

AUTH: James Dale

RQNM: Jeffery Harness

SUBJ: County Attorney (Prosecuting Attorney)

SBCD: 50

TEXT: Jeffery Harness, Esquire

P.O. Box 1263

Natchez, MS 39120

Re: County Prosecutor Jefferson County

Dear Mr. Harness:

Attorney General Jim Hood has received your request and has assigned it to me for research and reply. You pose three questions:

ISSUES AND RESPONSES

1. What is the process in making a County Prosecutor an elective position?

RESPONSE: There are two statutory methods for making the County Prosecutor an elective position:

(A) Section 19-23-3 of the Mississippi Code provides:

The board of supervisors of any county, when requested thereto by a petition signed by 20 per cent, of the qualified electors of that county asking for an election to determine whether or not the office of county prosecuting attorney shall be established or abolished, shall order an election to be held not less than sixty days from the first meeting of the board after the petition is filed, at which election the qualified electors of the county shall vote for or against the office of county prosecuting attorney. The expense of said election shall be paid out of the county treasury. It shall be the duty of the election commissioners to furnish to the managers of the election, ballots upon which shall be written the following: "For County Prosecuting Attorney's Office, " "Against County Prosecuting Attorney's Office, " and all laws now in force governing general elections shall apply to the special elections herein provided for. If it shall appear that a majority of the qualified electors voting on this question shall vote against the county prosecuting attorney's office, the office shall be abolished or not established, as the case may be. No election concerning the establishing or abolishing of the county prosecuting attorney's office shall be held less than two years from the date on which the office was established or abolished, as provided for in this section, and less than two years after a county attorney shall have been elected to fill the said office.

(B) Section 19-23-5 of the Mississippi Code provides:

The board of supervisors of any county where the county prosecuting attorney's office has been abolished may by its own motion entered upon the minutes, make an order to re-establish the said office of county prosecuting attorney in said county. Said order shall be published in a newspaper published in said county and having a general circulation therein, and if there is no such newspaper in said county, the said order shall be posted in three public places of said county, and one of the said places shall be the courthouse, for three consecutive weeks next preceding, and if within that time 20 per cent, of the qualified electors of the county shall petition against re-creation of said office, then the said office shall not be re-created, unless an election shall have been ordered in the manner provided for in Section 19-23-3, and a majority of the qualified voters in said election vote to re-create said office. The said board shall not re-create said office unless two years after the same has been abolished shall have passed. Should there be no petition against the re-creation of said office, the board of supervisors shall re-create said office of county prosecuting attorney.

2. If the County Prosecutor position was an elective position what will be the salary of the County Prosecutor in Jefferson County?

RESPONSE: Section 25-3-9 of the Mississippi Code, a copy of which is enclosed, provides the salaries of county prosecuting attorneys.

3. Does the County Prosecutor have to get permission from law enforcement to dismiss a traffic ticket?

RESPONSE: No. However, please note that only the court can dismiss a traffic ticket that has been filed with the court. The prosecutor may request the court to dismiss the ticket. See: MS AG Ops. Sturgis (August 11, 2006) and Beaty (October 23, 2009).

Sincerely,

JIM HOOD, ATTORNEY GENERAL

James Y. Dale, Special Assistant Attorney General