§ 23-1201 — County attorney; duties; services performed at request of Attorney General; additional compensation; reports

Nebraska § 23-1201

• Jurisdiction: Nebraska
• Ch. 23: County Government and Officers

Text

(1) Except as provided in subdivision (2) of section 84-205 or if a person is participating in a pretrial diversion program established pursuant to sections 29-3601 to 29-3604 or a juvenile pretrial diversion program established pursuant to sections 43-260.02 to 43-260.07 , it shall be the duty of the county attorney, when in possession of sufficient evidence to warrant the belief that a person is guilty and can be convicted of a felony or misdemeanor, to prepare, sign, verify, and file the proper complaint against such person and to appear in the several courts of the county and prosecute the appropriate criminal proceeding on behalf of the state and county. Prior to reaching a plea agreement with defense counsel, the county attorney shall consult with or make a good faith effort to consult with the victim regarding the content of and reasons for such plea agreement. The county attorney shall record such consultation or effort in his or her office file.
(2) It shall be the duty of the county attorney to prosecute or defend, on behalf of the state and county, all suits, applications, or motions, civil or criminal, arising under the laws of the state in which the state or the county is a party or interested. The county attorney may be directed by the Attorney General to represent the state in any action or matter in which the state is interested or a party. When such services require the performance of duties which are in addition to the ordinary duties of the county attorney, he or she shall receive such fee for his or her services, in addition to the salary as county attorney, as (a) the court shall order in any action involving court appearance or (b) the Attorney General shall authorize in other matters, with the amount of such additional fee to be paid by the state. It shall also be the duty of the county attorney to appear and prosecute or defend on behalf of the state and county all such suits, applications, or motions which may have been transferred by change of venue from his or her county to any other county in the state. Any counsel who may have been assisting the county attorney in any such suits, applications, or motions in his or her county may be allowed to assist in any other county to which such cause has been removed. The county attorney shall file the annual inventory statement with the county board of county personal property in his or her possession as provided in sections 23-346 to 23-350 . It shall be the further duty of the county attorney of each county, within three days from the calling to his or her attention of any violation of the requirements of the law concerning annual inventory statements from county officers, to institute proceedings against such offending officer and in addition thereto to prosecute the appropriate action to remove such county officer from office. When it is the county attorney who is charged with failure to comply with this section, the Attorney General may bring the action. It shall be the duty of the county attorney to make a report on the tenth day of each quarter to the county board which shall show final disposition of all criminal cases the previous quarter, criminal cases pending on the last day of the previous quarter, and criminal cases appealed during the past quarter. The county board may waive the duty to make such report.

Legislative History

Source: Laws 1885, c. 40, § 2, p. 216; Laws 1899, c. 6, § 1, p. 56; Laws 1905, c. 7, § 1, p. 59; Laws 1911, c. 6, § 1, p. 73; R.S.1913, § 5596; C.S.1922, § 4913; C.S.1929, § 26-901; Laws 1939, c. 28, § 6, p. 146; C.S.Supp.,1941, § 26-901; R.S.1943, § 23-1201; Laws 1957, c. 71, § 1, p. 305; Laws 1959, c. 87, § 1, p. 396; Laws 1959, c. 82, § 2, p. 373; Laws 1961, c. 98, § 1, p. 328; Laws 1979, LB 573, § 1; Laws 1983, LB 78, § 2; Laws 1990, LB 87, § 1; Laws 1997, LB 758, § 1; Laws 2003, LB 43, § 7; Laws 2016, LB807, § 1. Cross References: Definition of terms, see section 29-119. Annotations: 1. Powers and duties 2. Expenses 3. Assistance 4. Miscellaneous 1. Powers and duties Although the county attorney has a duty to represent the state in all matters arising under the laws of the state in which the state is a party or is interested, this duty is not an ordinary duty of the county attorney. A district court is authorized to award fees to a county attorney under subsection (2) of this section. Winter v. Department of Motor Vehicles, 257 Neb. 28, 594 N.W.2d 642 (1999). It is the function of the county attorney under this section to enforce the penal provisions of the Nebraska statutes. State v. Houtwed, 211 Neb. 681, 320 N.W.2d 97 (1982). A county attorney has no authority to prosecute city ordinance violations, nor to bring error proceedings in such cases. State v. Linn, 192 Neb. 798, 224 N.W.2d 539 (1974). County attorney of county where crime was committed has duty to prosecute upon change of venue. State v. Furstenau, 167 Neb. 439, 93 N.W.2d 384 (1958). County attorney's duties include all matters involving determination of inheritance tax. State ex rel. Nebraska State Bar Assn. v. Richards, 165 Neb. 80, 84 N.W.2d 136 (1957). County attorney could receive money due county under court decree. State ex rel. Heintze v. County of Adams, 162 Neb. 127, 75 N.W.2d 539 (1956). County attorney has choice of procedure in prosecuting juvenile offenders. Lingo v. Hann, 161 Neb. 67, 71 N.W.2d 716 (1955). County attorney is not limited by the Juvenile Court Act in any way in his duty to file proper complaints against wrongdoers and prosecute the same. State v. McCoy, 145 Neb. 750, 18 N.W.2d 101 (1945). Duties of county attorney and Attorney General are compared to show lack of authority of Attorney General to enter voluntary appearance in behalf of state. Anstine v. State, 137 Neb. 148, 288 N.W. 525 (1939). Action brought by taxpayer against the individual members of a county board for dereliction of duty cannot be dismissed on motion by county attorney. Holt County v. Tomlinson, 98 Neb. 777, 154 N.W. 537 (1915). County attorney may, if he has tried case, waive summons in error. Dakota County v. Bartlett, 67 Neb. 62, 93 N.W. 192 (1903). County attorney cannot enter voluntary appearance and confess judgment against county. Resolution of board is insufficient authority. Custer County v. Chicago, B. & Q. R. R. Co., 62 Neb. 657, 87 N.W. 341 (1901). County attorney must file informations for crime and prosecute all criminal cases in county. Dinsmore v. State, 61 Neb. 418, 85 N.W. 445 (1901). County attorney may institute proceedings against a juvenile either in the juvenile or district courts. Kennedy v. Sigler, 397 F.2d 556 (8th Cir. 1968). The county attorney may prosecute civil commitments of mentally ill persons. Doremus v. Farrell, 407 F.Supp. 509 (D. Neb. 1975). 2. Expenses County board, in sound discretion, may allow actual necessary expenses of county attorney in investigating and prosecuting actions. Berryman v. Schalander, 85 Neb. 281, 122 N.W. 990 (1909). County attorney may bind county for reasonable and necessary expenses incident to suit. Christner v. Hayes County, 79 Neb. 157, 112 N.W. 347 (1907). 3. Assistance An assistant may be a nonresident, but must qualify. Goldsberry v. State, 92 Neb. 211, 137 N.W. 1116 (1912). Private counsel may assist only in felony cases, when procured by county attorney under direction of court. McKay v. State, 90 Neb. 63, 132 N.W. 741 (1911). 4. Miscellaneous A county is "interested" in criminal action against a county official within the meaning of subsection (2) of this section when a conviction could expose the county to liability or substantially impair the performance of an essential governmental function. Guenzel-Handlos v. County of Lancaster, 265 Neb. 125, 655 N.W.2d 384 (2003). Where state and local purposes are commingled, the crucial issue turns upon a determination of whether the controlling purposes are state or local. Counties may be required to pay attorney's fees for one appointed to defend an indigent defendant. Kovarik v. County of Banner, 192 Neb. 816, 224 N.W.2d 761 (1975). A public prosecutor, acting in good faith within the general scope of his authority in making a determination whether to file a criminal prosecution, is immune from suit for erroneous or negligent determination. Koch v. Grimminger, 192 Neb. 706, 223 N.W.2d 833 (1974). A person employed and holding himself out as county attorney is such officer de facto, where not qualified. Gragg v. State, 112 Neb. 732, 201 N.W. 338 (1924). "Prosecuting" and "county" attorney are the same throughout the code. Bush v. State, 62 Neb. 128, 86 N.W. 1062 (1901).