TITLE 15 COURTS

Section 16. Sheriffs, 15-16-1 through 15-16-59.

ARTICLE 1 GENERAL PROVISIONS

15-16-10. Duties; penalties; electronic storage.

It is the duty of the sheriff:
1. To execute and return the processes and orders of the courts and of officers of competent authority, if not void, with due diligence, when delivered to him for that purpose, according to this Code;
2. To attend, by himself or his deputy, upon all sessions of the superior court of the county and also upon sessions of the probate court whenever required by the judge thereof and, while the courts are in session, never to leave same without the presence of himself or his deputy, or both, if required;
3. To attend, in the same manner specified in paragraph (2) of this subsection, at the place or places of holding an election at the county site, on the day of an election, from the opening to the closing of the polls, and to take under his charge all subordinate officers present, as police to preserve order;
4. To publish sales, citations, and other proceedings as required by law and to keep a file of all newspapers in which his official advertisements appear, in the manner required of clerks of the superior courts;
5. To keep an execution docket wherein he must enter a full description of all executions delivered to him and the dates of their delivery, together with all his actions thereon, and to have the same ready for use in any court of his county;
6. To keep a book in which shall be entered a record of all sales made by process of court or by agreement of the parties under the sanction of the court, describing accurately the property and the process under which sold, the date of the levy and sale, the purchaser, and the price;
7. To receive from the preceding sheriff all unexecuted writs and processes and proceed to execute the same; to carry into effect any levy or arrest made by a predecessor; to put purchasers into possession, and to make titles to purchasers at his or her predecessor's sales, when not done by his or her predecessor;
8. To perform such other duties as are or may be imposed by law or which necessarily appertain to his or her office;
9. To exercise the same duties, powers, and arrest authority within municipalities which such officer exercises in the unincorporated areas of counties; and
10. To develop and implement a comprehensive plan for the security of the county courthouse and any courthouse annex. Prior to the implementation of any security plan, the plan shall be submitted to the chief judge of the superior court of the circuit wherein the courthouse or courthouse annex is located for review. The chief judge shall have 30 days to review the original or any subsequent security plan. The chief judge may make modifications to the original or any subsequent security plan. The sheriff shall provide to the county governing authority the estimated cost of any security plan and a schedule for implementation 30 days prior to adoption of any security plan. A comprehensive plan for courthouse security shall be considered a confidential matter of public security. Review of a proposed security plan by the governing authority shall be excluded from the requirements of Code Section 50-14-1. Such security plan shall also be excluded from public disclosure pursuant to paragraph (25) of subsection (a) of Code Section 50-18-72. The sheriff shall be the official custodian of the comprehensive courthouse security plan and shall determine who has access to such plan and any such access and review shall occur in the sheriff's office or at a meeting of the county governing authority held as provided in paragraph (4) of subsection (b) of Code Section 50-14-3; provided, however, that the sheriff shall make the original security plan available upon request for temporary, exclusive review by any judge whose courtroom or chambers is located within the courthouse or courthouse annex or by any commissioner of the county in which the courthouse or courthouse annex is located. The sheriff shall be responsible to conduct a formal review of the security plan not less than every four years.
If any sheriff or deputy fails to comply with any provision of subsection (a) of this Code section, he or she shall be fined for a contempt as the clerk of superior court is fined in similar cases. Code Section 15-16-26 shall also apply to sheriffs.
In all counties of this state having a population of not less than 625,000 nor more than 725,000 according to the United States decennial census of 2000 or any future such census, it shall be the duty of the sheriffs of such counties to receive, confine, feed, and care for all persons charged with the violation of any ordinances of such counties in the same manner as persons charged with an indictable offense, whether such person charged with the violation of an ordinance is being held pending a hearing before the recorder's courts of such counties or has been sentenced by the recorder's courts to imprisonment in the county jail.
Nothing in this Code section shall restrict or otherwise prohibit a sheriff or a deputy sheriff or clerk acting under the authority of a sheriff from electing to store for computer retrieval any or all records, dockets, books, indices, or files; nor shall a sheriff or a deputy sheriff or clerk acting under the authority of a sheriff be prohibited from combining or consolidating any records, dockets, books, indices, or files in connection with the maintenance of any records of the kind specified or required in this Code section or any other law, provided that any automated or computerized record-keeping method or system shall provide for the systematic and safe preservation and retrieval of all such records, dockets, books, indices, or files. When the sheriff or a deputy sheriff or clerk acting under the authority of the sheriff elects to store for computer retrieval any or all records, the same data elements used in a manual system shall be used, and the same integrity and security maintained.

(Laws 1799, Cobb's 1851 Digest, p. 574; Laws 1810, Cobb's 1851 Digest, p. 577; Laws 1818, Cobb's 1851 Digest, p. 858; Laws 1820, Cobb's 1851 Digest, p. 480; Laws 1823, Cobb's 1851 Digest, p. 52; Ga. L. 1853-54, p. 28, § 4; Code 1863, §§ 336, 340; Code 1868, §§ 397, 401; Code 1873, §§ 361, 366; Code 1882, §§ 361, 366; Civil Code 1895, §§ 4380, 4386; Ga. L. 1905, p. 106, § 1; Civil Code 1910, §§ 4914, 4920; Code 1933, §§ 24-2813, 24-2814; Ga. L. 1964, p. 2885, § 1; Ga. L. 1981, p. 3, § 2; Ga. L. 1981, p. 4238, § 1; Ga. L. 1982, p. 3, § 15; Ga. L. 1982, p. 2107, § 14; Ga. L. 1992, p. 6, § 15; Ga. L. 1992, p. 1230; Ga. L. 1993, p. 1688, § 1; Ga. L. 2000, p. 844, § 1; Ga. L. 2002, p. 1473, § 1; Ga. L. 2006, p. 560, § 1/SB 462; Ga. L. 2012, p. 173, § 2-7/HB 665; Ga. L. 2012, p. 218, § 4/HB 397.)

Cross references.

- Budget for implementing security plans subject to approval by the governing authority, § 36-81-11.

Service of process by coroner when sheriff disqualified, § 45-16-8.

Law reviews.

- For survey article on local government law, see 59 Mercer L. Rev. 285 (2007). For article on the 2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 139 (2012). For note, "Finding Immunity: Manders v. Lee and the Erosion of 1983 Liability," see 55 Mercer L. Rev. 1505 (2004).

JUDICIAL DECISIONS

General Consideration

Office of sheriff carries all common law duties and powers.

- Office of sheriff carries with it, in America, all of its common law duties and powers, except as modified by statute. Elder v. Camp, 193 Ga. 320, 18 S.E.2d 622 (1942); Hannah v. State, 212 Ga. 313, 92 S.E.2d 89 (1956).

Inherent authority of state official to drug screen.

- Duly elected constitutional officer must have the inherent authority to implement certain public safety policies. One such public safety policy is the random drug screening of personnel who are authorized to carry weapons. The state has a compelling reason for randomly drug testing law enforcement employees because drug use by law enforcement personnel undermines public confidence in the integrity of law enforcement and poses a danger to fellow employees, prison inmates, and the public at large. Mayo v. Fulton County, 220 Ga. App. 825, 470 S.E.2d 258 (1996).

No reference to any authority for custody of petit jury.

- This section, relating to the duties of sheriffs, makes no direct or indirect reference to any duty or authority for the custody of a petit jury during their deliberations in the superior court. Hannah v. State, 212 Ga. 313, 92 S.E.2d 89 (1956).

Sheriff cannot violate constitution in exercising duties.

- Office of sheriff carries with the office the duty to preserve the peace and protect the lives, persons, property, health, and morals of the people. But in the exercise of these duties, the sheriff is not permitted to violate the constitutional guaranties against unlawful search and seizure. Elder v. Camp, 193 Ga. 320, 18 S.E.2d 622 (1942).

Liability for contempt depends on good faith of sheriff's conduct.

- Whether a sheriff neglected the sheriff's duty would depend on the good faith of the sheriff's conduct, in view of the circumstances under which the sheriff acted; because a former wife failed to show that the sheriff "neglected his duty" in failing to arrest the former husband, the sheriff could not be held in contempt. In re Smith, 205 Ga. App. 857, 424 S.E.2d 45, cert. denied, 205 Ga. App. 900, 424 S.E.2d 45 (1992).

Although the sheriff had a statutory obligation to maintain the jail, the trial court properly held the county in contempt of court for failing to monitor the medical care at the county jail as the county had agreed to do in order to settle a case brought by county jail inmates because the inmates were not receiving adequate medical care. The evidence showed the county was not complying with the settlement agreement and the county had been informed and knew that the issue of contempt would be considered at a hearing the county was ordered to attend. Dorsey v. Adams, 255 Ga. App. 257, 564 S.E.2d 847 (2002).

County commissioner may not divest sheriff of powers and duties.

- County commissioners may remove some funds from a sheriff's budget that are required for law enforcement purposes, but not all funds, and may not divest the sheriff of the sheriff's law enforcement power and duty. The budget must be reasonable under all of the circumstances and must provide reasonably sufficient funds to allow the sheriff to discharge the sheriff's legal duties. Chaffin v. Calhoun, 262 Ga. 202, 415 S.E.2d 906 (1992).

County's control over sheriff's personnel or policy.

- In a wrongful death action, a county was not liable under 42 U.S.C. § 1983 for the acts of a sheriff because the county had no control over the sheriff's personnel or policy decisions and the sheriff was not an employee of the county commission but rather was an elected, constitutional officer subject to the charge of the Georgia General Assembly. Brown v. Dorsey, 276 Ga. App. 851, 625 S.E.2d 16 (2005).

Superior court's transport order did not usurp county sheriff's authority.

- Superior court did not abuse the court's discretion, or usurp the authority of the county sheriff, by ordering the sheriff to transport county jail inmates represented by the county public defender to the county courthouse for pre-arraignment meetings as those actions helped to ensure that the inmates received the effective assistance of counsel. Brown v. Incarcerated Pub. Defender Clients Div. 3, 288 Ga. App. 859, 655 S.E.2d 704 (2007), cert. denied, 2008 Ga. LEXIS 406 (Ga. 2008).

Sheriff has no authority over commissions generated by use of county property or facilities.

- County sheriff was not entitled to keep commissions received from a company that provided telephone services to county jail inmates as revenue generated using county property or facilities - such as the jail - was itself county property and therefore subject to county authority under O.C.G.A. § 36-5-22.1. Although a sheriff could collect certain fees, such as fees for attending court, O.C.G.A. § 15-16-21 provided that such fees had to be turned over to the county's treasurer or fiscal officer. Lawson v. Lincoln County, 292 Ga. App. 527, 664 S.E.2d 900 (2008), cert. denied, 2008 Ga. LEXIS 899 (Ga. 2008).

Cited in Floyd County v. Foster, 112 Ga. 133, 37 S.E. 90 (1900); American Booksellers Ass'n v. McAuliffe, 533 F. Supp. 50 (N.D. Ga. 1981); Whiddon v. State, 160 Ga. App. 777, 287 S.E.2d 114 (1982); In re Irvin, 254 Ga. 251, 328 S.E.2d 215 (1985); Middleton v. Smith, 273 Ga. 202, 539 S.E.2d 163 (2000); Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003); Dorsey v. State, 279 Ga. 534, 615 S.E.2d 512 (2005); Deal v. Coleman, 294 Ga. 170, 751 S.E.2d 337 (2013); Raw Properties, Inc. v. Lawson, 335 Ga. App. 802, 783 S.E.2d 161 (2016).

Warrant Requirement

Power to arrest offender without warrant if offense committed in presence.

- Like other police officers or private persons, a sheriff has the power to arrest an offender without a warrant if the offense is committed in the sheriff's presence. Elder v. Camp, 193 Ga. 320, 18 S.E.2d 622 (1942).

Seizure of property without warrant.

- Sheriff may seize unlawfully kept property without warrant for search, seizure, or arrest of offender if the sheriff lawfully enters a place of business open to the sheriff as well as other members of the public under an implied invitation to enter, and finds in such place of business "slot machines" of the character described, illegally kept by the owner or operator of such place of business. But these powers would not extend the sheriff's authority to a search of what are actually private premises of the owner to find slot machines in the absence of a warrant. Elder v. Camp, 193 Ga. 320, 18 S.E.2d 622 (1942).

Sheriff's liability for database with warrant information.

- County had no 42 U.S.C. § 1983 liability for the sheriff's law enforcement policies and conduct regarding warrant information on database systems or the training and supervision of the sheriff's employees in that regard; under Georgia law, the sheriff's function was to enforce laws and keep the peace on behalf of the state. Grech v. Clayton County, 335 F.3d 1326 (11th Cir. 2003).

Custody

Sheriff of county has a statutory duty to accept all city prisoners and the county commissioners have authority to require the sheriff to do so. Griffin v. Chatham County, 244 Ga. 628, 261 S.E.2d 570 (1979).

Sheriff has custody and responsibility of defendant pending trial.

- Custody of a defendant, pending defendant's trial under an indictment for a criminal offense, is in the sheriff of the county wherein the offense was committed, and the responsibility for defendant's safe and secure confinement in jail is that of the sheriff. Howington v. Wilson, 213 Ga. 664, 100 S.E.2d 726 (1957).

Practice and Procedure

Sheriffs and the sheriffs' deputies must be parties to proceedings traversing their entry of service. Northern Freight Lines v. Fireman's Fund Ins. Cos., 121 Ga. App. 786, 175 S.E.2d 104 (1970).

Deputy sheriff may attend court alone. McGuffie v. State, 17 Ga. 497 (1855).

Sheriff may sell land levied upon by sheriff's predecessor. Gower v. New England Mtg. Sec. Co., 152 Ga. 822, 111 S.E. 422 (1922).

Execution of Process

Sale under execution for more than its amount satisfies judgment, whether the process is marked satisfied or not. Jinks v. American Mtg. Co., 102 Ga. 694, 28 S.E. 609 (1897).

Death does not prevent enforcement of execution already issued.

- Death of the plaintiff in execution after the execution has been issued and placed in the hands of the levying officer does not prevent such officer from enforcing the execution. Hatcher v. Lord, 115 Ga. 619, 41 S.E. 1007, 61 L.R.A. 353 (1902).

Illegality of one execution does not excuse sheriff from proceeding with others.

- If a sheriff holds several fi. fas. against the same defendant, a claim interposed as affidavit of illegality filed as against one of them does not excuse the sheriff from proceeding with the rest. Carr v. Morris, 17 Ga. App. 45, 86 S.E. 94 (1915).

Officer not protected from liability for executing void warrant improperly.

- Cursory reading of this section shows that the sentence does not protect an officer acting under color of office from liability for damages for executing even a void warrant in a manner which would have been illegal if the warrant had been valid. If the law excuses the officer for not executing a void warrant, it does not follow that it excuses the officer for improperly executing a void warrant under color of office. This, of course, does not mean that a surety would be liable for acts of a sheriff or a sheriff's deputy when they are purely personal even though in bad faith cloaked in official authority. In order for liability to attach to the surety, a sheriff or the sheriff's deputy must actually be acting as sheriff or as a deputy and without authority to so act in the particular matter. Goforth v. Fidelity & Cas. Co., 80 Ga. App. 121, 55 S.E.2d 656 (1949).

Sheriff is protected in executing process, when it is not irregular or void on its face. King v. Haley, 146 Ga. 85, 90 S.E. 715 (1916).

Sheriff is liable for false and fraudulent return. Duncan v. Webb, 7 Ga. 187 (1849).

Authority of sheriff.

- Because a sheriff did not have the authority to make the judicial determination necessary to invalidate tax executions, which were facially valid, a trial court erred in denying a mandamus petition brought by a buyer of the tax executions which sought to compel the sheriff to levy on the executions after the sheriff refused to do so. Vesta Holdings, LLC v. Freeman, 280 Ga. 608, 632 S.E.2d 87 (2006).

Liability of officer for incorrect levy.

- Officer who levies an execution founded on a general judgment upon personal property in the custody of the defendant therein, with notice that the defendant's children are the owners, and that the apparent possession of the mother is really their possession, is liable to the children in an action for damages. Waldrup v. Almand, 94 Ga. 623, 19 S.E. 994 (1894).

Entry of satisfaction on execution by purchaser at sale is not evidence of purchaser's title. Dickinson v. Solomons, 26 Ga. 684 (1859).

Removal

Provisions for removal of superior court clerks applicable to sheriffs.

- Under former Code 1933, §§ 24-2813, 24-2814, 77-110 and 77-111 (see now O.C.G.A. §§ 15-16-10 and42-4-4), the provisions of former Code 1933, § 24-2724 (see now O.C.G.A. § 15-6-82), providing for the removal of clerks of the superior court from office, applied to the removal of sheriffs from office. Adamson v. Leathers, 60 Ga. App. 382, 3 S.E.2d 871 (1939).

Sheriffs subject to removal for any sufficient cause.

- Under former Code 1933, § 24-2724 (see now O.C.G.A. § 15-6-82), sheriffs were subject to be removed from office for "any sufficient cause," and sufficient cause meant a cause relating to and affecting the administration of the office and material to the interests of the public. Adamson v. Leathers, 60 Ga. App. 382, 3 S.E.2d 871 (1939).

Conviction for malpractice in office not a condition precedent to removal.

- Conviction in a criminal prosecution against the county officer for malpractice in office is not a condition precedent to the officer's removal from office. A different ruling would render the removal provision of the Georgia Constitution meaningless since malpractice in office by the officer is not a penal offense. Cole v. Holland, 219 Ga. 227, 132 S.E.2d 657 (1963).

OPINIONS OF THE ATTORNEY GENERAL

Sheriff has right and duty to enforce laws.

- In exercising these duties and powers and acting as a conservator of the peace within the county, a sheriff has the right and duty to enforce the laws enacted for the protection of the lives, persons, property, health, and morals of the people. 1977 Op. Att'y Gen. No. 77-83.

Sheriff has all common law duties and powers.

- This provision has been interpreted to include all common law duties and powers of sheriffs, except as modified by statute. 1977 Op. Att'y Gen. No. 77-83.

Authority of sheriff to enforce criminal laws.

- This section is understood by the Georgia Supreme Court as authorizing the sheriff to enforce the criminal laws generally, and in particular the traffic laws, and in the course of this enforcement to make arrests. 1969 Op. Att'y Gen. No. 69-385.

Sheriff authorized to enforce traffic regulations.

- Former Code 1933, §§ 24-2813, 24-2814 and Ga. L. 1937-38, Ex. Sess., p. 558, § 9 (see now O.C.G.A. §§ 15-16-10 and40-13-30) encompass an authorization to the sheriff to enforce speed limits as well as other traffic regulations. 1969 Op. Att'y Gen. No. 69-385.

County sheriff's department may enforce ordinances prohibiting trucks over ten wheels from using residential roads within county except when making temporary deliveries. 1996 Op. Att'y Gen. No. U96-17.

Sheriff need not investigate accidents on private property.

- There is no specific statutory mandate which would require a county sheriff to investigate an accident occurring on private property. 1968 Op. Att'y Gen. No. 68-206.

Presence of sheriff at polling place when necessary for preservation of order.

- Sheriff or deputy sheriff may remain within 250 feet of a polling place on a primary or election day even though their presence is not at the request of an election official as long as the sheriff determines such presence to be necessary for preservation of order. 1977 Op. Att'y Gen. No. 77-83.

Court and sheriff responsible for ensuring safety of court.

- Court, assisted by the sheriff of the county, is responsible for undertaking measures necessary to ensure the safety of the court during a habeas corpus proceeding; however, this does not relieve the Board of Corrections from any of the Board's constitutional duty for custody of inmates. 1973 Op. Att'y Gen. No. 73-57.

Sheriff required to execute fieri facias irrespective of fee differential.

- If any fieri facias is delivered to the sheriff for execution and the sheriff is paid in advance by the party wishing the fieri facias executed, the difference between the sheriff's fee and the constable's fee for such execution, then the sheriff is bound and required to execute the fieri facias. 1965-66 Op. Att'y Gen. No. 65-63.

Execution and return of processes and order of magistrate court.

- Sheriff and the sheriff's deputies are not authorized to execute and return the processes and orders of a magistrate court when that court has an appointed constable. 1987 Op. Att'y Gen. No. U87-16.

Order of contempt is order of court.

- Order of contempt issuing from a justice of the peace (now magistrate) court is an order of a court within the meaning of this section. 1965-66 Op. Att'y Gen. No. 65-63.

Separation of duties between justice of the peace (now magistrate) and sheriff.

- See 1963-65 Op. Att'y Gen. p. 6.

Misconduct sufficient for removal may not constitute grounds for quo warranto.

- Misconduct sufficient as grounds for removal under former Code 1933, §§ 24-2724, 24-2813, and 24-2814 (see now O.C.G.A. §§ 15-6-82 and15-16-10) would not constitute grounds for quo warranto unless such misconduct resulted in conviction and consequent loss of civil rights. 1954-56 Op. Att'y Gen. p. 116.

No provision is made for bailiffs in probate court. 1969 Op. Att'y Gen. No. 69-10.

RESEARCH REFERENCES

Am. Jur. 2d.

- 70 Am. Jur. 2d, Sheriffs, Police, and Constables, § 30 et seq.

C.J.S.

- 80 C.J.S., Sheriffs and Constables, §§ 34, 206.

ALR.

- Execution: effect of return made after return day, 2 A.L.R. 181.

Steps to be taken by officer before resale upon default of purchaser at judicial or execution sale, 24 A.L.R. 1330.

Mistreatment of prisoner as ground for removal of sheriff or other police officer, 100 A.L.R. 1401.

Liability of officer (or sureties on his bond) who conducted sale of property under execution, or other process, to creditors, other than one for whom sale was made, for failure to comply with statutory requirements in making sale, 125 A.L.R. 1147.

What amounts to false return of execution or attachment; justification of alleged false return, 157 A.L.R. 194.

Civil liability of one making false or fraudulent return of process, 31 A.L.R.3d 1393.

Immunity of public officer from liability for injuries caused by negligently released individual, 5 A.L.R.4th 773.

Inadequacy of price as basis for setting aside execution or sheriff's sale - modern cases, 5 A.L.R.4th 794.

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