Opinion 171

In light of the 1992 amendment to O.C.G.A. § 42-8-100 (42-8-102) granting municipal courts the authority to contract with private concerns to provide general probation supervision, fine collection services, counseling and other probation services for persons convicted in such courts and placed on probation, an advisory opinion is requested on the following issue:

While it is well-settled that a defendant cannot suffer a revocation of a probated sentence because he is unable (as opposed to unwilling) to pay fees for counseling programs required by his sentence, would Opinion No. 152 prohibit a court from requiring a defendant to attend a private, “for profit” counseling program sponsored by the court’s probation contractor, noting that failure to comply could result in the revocation of the probated sentence?

Insofar as this question involves construction of this statute, it is an issue for the courts rather than this Commission. Insofar as the question involves the Code of Judicial Conduct and prior opinions of this Commission, it is answered as follows: O.C.G.A. § 42-8-102 clearly authorizes a municipal court to contract for probation services with “for profit” companies. This being true, it would appear that the court could also require a defendant to attend a counseling program sponsored by the court’s private contractor without violating the holding of Opinion No. 152.

A careful reading of Opinion No. 152 indicates that the answer to Question 2 was specifically premised on the language of O.C.G.A. § 40-6-391.1 permitting a defendant to attend any DUI Alcohol or Drug Risk Reduction Program approved by the Department of Human Resources. No such language appears, and no such right is given, in O.C.G.A. § 42-8-102. Accordingly, the question posed is answered in the negative.

The Commission also notes that Sections 7 and 8 of HB, 1607 (1992) strike O.C.G.A. § 42-8-100 and 42-8-101 and substitute new language for both sections. As amended, O.C.G.A. § 42-8-101 creates a County Probation Advisory Counsel which, among other things, is directed to “promulgate rules and regulations regarding contracts or agreements for probation services as authorized by this article.” To the best of the Commission’s knowledge, this Council has not yet been named, nor have any rules and regulations been promulgated as of the date of this opinion. Accordingly, any opinions expressed herein are conditioned upon and subject to review and modification, if necessary, upon promulgation of the rules and regulations authorized by this Code Section.

Although it should be obvious, no judge should have any interest financial or otherwise, in any such “for profit” probation service company.

[Pertinent Code of Judicial Conduct provisions: Canon 1, Rules 1.2(B), 2.4(B), 2.11(A), 3.1(A), 3.11. Cross reference to other relevant opinions for review: #34, #70, #101, #137, #151, #152, #162, #172, #179.]

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