Can a Georgia juvenile-justice probation officer draft delinquency petitions and assist with prosecution paperwork without practicing law without a license?

Plain-English summary

The Commissioner of the Department of Juvenile Justice (DJJ) asked three questions about probation officers' permissible roles in juvenile delinquency cases: (1) can DJJ probation staff draft delinquency petitions, prepare orders, or conduct hearings without committing the unauthorized practice of law; (2) what is the Department's role in helping district attorneys with juvenile petitions; and (3) does the juvenile court have authority to order DJJ probation staff to assist?

The Attorney General drew a clean line. DJJ probation staff may draft charging documents and orders. That is paperwork, not legal practice in the prohibited sense. But probation officers are barred by both statute (O.C.G.A. § 15-11-24.2(5)) and rule (Unif. Juv. Ct. R. 2.4) from "conducting accusatory proceedings" against a child under their supervision. They cannot sit as triers of fact, nor can they prosecute. They can give testimony about probation violations of which they have personal knowledge.

The Department also has a statutory duty under O.C.G.A. § 15-11-64.1 to assist the district attorney by providing files, transcripts, reports, and recommendations on request. And juvenile courts can direct DJJ probation employees through valid orders under § 15-11-24.2(6), the catch-all provision authorizing courts to assign other functions to probation officers. The catch-all is bounded: a court cannot order a probation officer to do something the officer has no statutory authority to do, like conducting an accusatory proceeding.

The constitutional separation-of-powers analysis follows Wolcott v. State (2004), which held that probation officers function in a "dual capacity" as agents of the State and officers of the court. As long as the judiciary retains the power to decide whether probation has been violated, having executive-branch employees serve also as court officers does not violate separation of powers.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Note that Georgia's juvenile code in Title 15, Chapter 11 was substantially rewritten in 2013 (the "new juvenile code"). Many of the section numbers cited in this opinion have been renumbered or revised. The general principle (that probation officers cannot conduct accusatory proceedings) survived the rewrite, but specific code references should be verified against current law.

Common questions

Q: What is an "accusatory proceeding" in juvenile court?
A: Uniform Juvenile Court Rule 2.4 defines it as "any hearing or court proceeding in which the child stands accused of violating the law or an order of the court and is subject to court sanctions as a result thereof." That covers adjudicatory hearings on delinquency petitions, contempt hearings, and probation revocation hearings. It does not cover dispositional or status hearings where the question is what services to provide.

Q: Why can probation officers draft petitions but not file them?
A: Drafting is treated as paperwork that does not on its own initiate a case. Filing makes the probation officer the moving party in the prosecution, and that crosses into prosecuting. Under the AG's reading, the prosecutor (or a law enforcement officer with personal knowledge of the facts under § 15-11-38) should be the one filing.

Q: Does the unauthorized practice of law concern apply here at all?
A: The Court of Appeals raised it in dicta in In the Interest of P.L.S. (1984), saying probation officers should remain "objective and unbiased" to do their job. The 2008-5 opinion does not really decide whether drafting petitions is the practice of law in a strict sense. It sidesteps that issue by relying on the statutory and rule prohibitions on conducting accusatory proceedings, which exist independently of any UPL concern.

Q: What does "dual capacity" mean for a probation officer?
A: From Wolcott v. State, the probation officer is simultaneously an executive-branch employee (DJJ pays them) and an officer of the juvenile court (the court directs their work in pending cases). The Georgia Supreme Court treated this as constitutional because the actual adjudicatory power, deciding whether probation was violated, stays with the judiciary. The probation officer just investigates and reports.

Q: Can a juvenile court order DJJ to do anything the court wants?
A: No. § 15-11-24.2(6) lets the court direct probation officers to perform "all other functions designated by this chapter or by order of the court pursuant thereto." The catch-all is tied to functions inside Chapter 11. A court could not order a probation officer to function as the prosecutor, because that role falls outside the chapter's probation-officer functions and conflicts with § 15-11-24.2(5)'s prohibition.

Q: How does this opinion interact with funded DJJ takeover of county juvenile services?
A: O.C.G.A. § 15-11-24.3(b) lets juvenile courts transfer their intake and probation services to the State, with the personnel becoming DJJ employees. Once that happens, DJJ employees are operating as juvenile court probation officers, and they are subject to the duties in § 15-11-24.2 just like county probation officers were. The opinion uses this provision to confirm that DJJ staff cannot escape the statutory limits by pointing to their executive-branch employer.

Background and statutory framework

Georgia's juvenile delinquency system rests on a divided architecture. The judiciary runs the courts and supervises probation. The executive branch (through DJJ since 1992) operates detention and runs probation services in counties that have transferred those services to the State. The District Attorney's office prosecutes. Each branch has functions the others cannot perform.

The 2008-5 opinion sat at the intersection of these branches at a time when DJJ had taken over probation services in many counties under § 15-11-24.3(b). DJJ staff were drafting petitions and assisting prosecutors, and the Commissioner wanted clarity on where the line was.

The opinion's structural argument is built on three statutory anchors. § 15-11-24.2(5) bars probation officers from conducting accusatory proceedings against their own supervisees. § 15-11-64.1 affirmatively requires probation officers to help the DA gather files, transcripts, and recommendations. § 15-11-24.2(6) is the catch-all that lets courts direct probation officers to perform functions consistent with the chapter. Together, these create a model in which probation officers are an investigative and supervisory arm of the court, not prosecutors and not judges.

The constitutional argument relies on Wolcott. Wolcott upheld the analogous adult-probation provision against a separation-of-powers challenge by holding that the dispositive power, deciding whether probation was violated and what to do about it, remains in the judiciary. The probation officer is reporting up to the court, not exercising the court's power.

Citations and references

Statutes:
- O.C.G.A. § 15-11-24.2, duties of probation officers (the key provision)
- O.C.G.A. § 15-11-24.2(5), bar on conducting accusatory proceedings
- O.C.G.A. § 15-11-24.2(6), catch-all for additional functions ordered by court
- O.C.G.A. § 15-11-24.3(b), transfer of probation services from counties to DJJ
- O.C.G.A. § 15-11-38, who may file a delinquency petition
- O.C.G.A. § 15-11-64.1, DA conducts proceedings on behalf of state; probation officer assists
- O.C.G.A. § 49-4A-7, DJJ provides probation services pursuant to court request
- O.C.G.A. § 1-3-1(a): statutory construction follows legislative intent

Court Rule:
- Unif. Juv. Ct. R. 2.4: probation officer may not conduct accusatory proceedings

Cases:
- Wolcott v. State, 278 Ga. 664 (2004), probation officers in dual capacity; constitutional under separation of powers
- Huzzie v. State, 253 Ga. App. 225 (2002), probation officers as investigative and supervisory arm of the court
- In the Interest of P.L.S., 170 Ga. App. 74 (1984), dicta on probation officers' need to remain objective
- City of Jesup v. Bennett, 226 Ga. 606 (1970), plain language of an Act controls

Source

• Landing page: https://law.georgia.gov/opinions/2008-5
• Original PDF: not linked from landing page

Original opinion text

You have requested advice regarding the extent to which the Department of Juvenile Justice's probation staff may participate in various juvenile delinquency proceedings. In particular, you have asked whether the Department's staff would engage in the unauthorized practice of law by drafting delinquency petitions, preparing orders, or conducting hearings. Finally, you have asked whether the juvenile court has any authority to order Department staff to assist with the petition process. It is my official opinion that the Department's probation staff would engage in the unauthorized practice of law by conducting any accusatory proceedings. However, the Department is required to assist prosecuting attorneys in obtaining necessary documents and files and to comply with court orders issued pursuant to section 15-11-24.2(6) of the Official Code of Georgia Annotated ("Georgia Code"). This may include assistance in drafting of documents. Delinquency Petitions and the Unauthorized Practice of Law The Department's probation staff would not engage in the unauthorized practice of law by drafting charging documents such as delinquency petitions. However, since those petitions are charging documents, they would be filed in court to initiate a new action against the juvenile. Filing of such documents should be done by the prosecutor or a law enforcement officer rather than by the Department's probation staff. Title 15, Chapter 11 of the Georgia Code sets forth Georgia's statutory requirements for juvenile court proceedings. Under O.C.G.A. § 15-11-38, a "petition alleging delinquency, deprivation, or unruliness of a child may be made by any person, including a law enforcement officer, who has knowledge of the facts alleged or is informed and believes that they are true." However, probation officers are specifically forbidden from conducting "accusatory proceedings against a child who is or may be under such probation officer's care or supervision" by O.C.G.A. § 15-11-24.2(5), and juvenile court rules explicitly forbid a probation officer from conducting any accusatory proceeding. See Unif. Juv. Ct. R. 2.4. An accusatory proceeding is "any hearing or court proceeding in which the child stands accused of violating the law or an order of the court and is subject to court sanctions as a result thereof." Id. In such proceedings, a probation officer may not serve "either as the trier of facts or in a prosecutorial role, but may give testimony as to any violation of a valid order of probation or supervision of which he or she has personal knowledge." Id. Thus, drafting of documents may be permissible but the ultimate responsibility for the work product would rest on someone other than the probation officer. The Department's Responsibilities in the Prosecution of Juvenile Delinquency Matters The Department's probation staff has a duty to assist the district attorneys in obtaining files, transcripts, reports, and recommendations. However, the probation officer's role in juvenile court proceedings is distinct and separate from the district attorney's role. In juvenile proceedings, district attorneys "conduct the proceedings on behalf of the state." O.C.G.A. § 15-11-64.1. In contrast, probation officers "make investigations, reports, and recommendations to the court . . . ; receive and examine complaints and charges of delinquency, unruly conduct, or deprivation of a child . . . ; and supervise and assist a child placed on probation . . . ." O.C.G.A. § 15-11-24.2(1), (2), and (3). Additionally, probation officers are statutorily forbidden from conducting "accusatory proceedings against a child who is or may be under such probation officer's care or supervision," and juvenile court rules provide that a "probation or non-judicial officer shall not conduct an accusatory proceeding against any child." O.C.G.A. § 15-11-24.2(5); Unif. Juv. Ct. R. 2.4. Probation officers do have a duty "to assist the district attorney or staff member in obtaining any such files, transcripts, reports, or records, or copies thereof, as may be requested by the district attorney or staff member." O.C.G.A. § 15-11-64.1. Therefore, although probation officers are specifically forbidden from conducting accusatory proceedings, they are required to help the district attorney. The Georgia Court of Appeals has discussed, in dicta, both the legal and ethical considerations of probation officers' involvement in juvenile court proceedings. See In the Interest of P.L.S., 170 Ga. App. 74 (1984) (declining to reverse the juvenile court's decision because appellant's argument that it was error for a probation officer to conduct the accusatory proceedings was not raised below). According to the Court of Appeals, "[i]t is clear that the official whose statutory responsibilities include the supervision and assisting of juveniles can best serve that remedial function if, insofar as possible, he remains an objective and unbiased figure in the eyes of those juveniles whom he supervises and assists." Id. at 76. As stated by the Court of Appeals, probation officers must maintain a degree of objectivity in order to carry out their responsibilities of reporting on, making recommendations for, supervising, and assisting juveniles. Although probation officers must help the district attorney obtain necessary reports and files, they must not conduct the accusatory proceeding. The Court's Authority to Order Department Staff to Assist in the Petition Process Your letter questions whether the Department's probation staff, as employees of the executive branch, are subject to O.C.G.A. § 15-11-24.2. It is my opinion that they are, and that Department staff serving as probation officers in a juvenile court must comply with valid court orders issued pursuant thereto. To find that Department employees are not subject to O.C.G.A. § 15-11-24.2 would be to find that the General Assembly intended to leave it to the Department to decide what duties and powers constitute probation services. Such does not appear to be the case. The Department provides probation officers in certain juvenile courts. The Department is authorized to provide probation services "pursuant to a request from a court under Article 1 of Chapter 11 of Title 15." O.C.G.A. § 49-4A-7. Given that provision's specific reference to Title 15, it would be illogical to divorce the Department's probation work from the guidelines set forth under that Title. Further, the Georgia Code provides that the intake and probation services of the juvenile court of each county may be transferred to and become a part of the state-wide juvenile and intake services and fully funded through the department. The intake and probation employees of juvenile courts of those counties whose intake and probation services are transferred pursuant to this Code section shall become employees of the department . . . . O.C.G.A. § 15-11-24.3(b). See also Unif. Juv. Ct. R. 2.4 (declaring "the judge may designate a court service worker of the Department of Juvenile Justice to perform the duties of a probation officer"). Probation and intake services are defined as "those services provided by probation and intake employees for the juvenile court of a county." O.C.G.A. § 15-11-24.3(a)(3). In addition, a juvenile court probation officer's duties are set forth in O.C.G.A. § 15-11-24.2, including the language therein clearly showing that Department employees may serve as probation officers, as it recognizes both "county juvenile intake or probation officer[s]" and "staff of the Department of Juvenile Justice serving as juvenile intake or probation officer[s]." Thus, "where the language of an Act is plain and unequivocal, judicial construction is not only unnecessary but is forbidden." City of Jesup v. Bennett, 226 Ga. 606, 608 (1970). In Wolcott v. State, 278 Ga. 664 (2004), the Supreme Court considered the argument that the statute authorizing an adult probation officer to file a petition for revocation of probation violated constitutional principles of the separation of powers. After acknowledging that probation officers act "in a dual capacity as an agent for the State and as an officer of the court," the court described their role to be "an investigative and supervisory arm of the court." Id. at 665, 666 (quoting Huzzie v. State, 253 Ga. App. 225, 227 (2002)). The court held the statute to be constitutional because, although it required probation officers to share their reports and recommendations with the court, the "power and jurisdiction to determine whether a probationer violated the terms of his sentence so that probation should be revoked" remained a power of the judiciary. Id. at 666. In this situation, as in Wolcott, the Department's probation staff is expected to provide investigatory and monitoring services and to report their findings to the court. Thus, although the Department's probation staff is employed by the executive branch, it is not unconstitutional for them to serve also as officers of the court and for them to assist in the petition process. Id. As the court held in Wolcott, this assistance is not an unconstitutional violation of separation of powers principles. Id. It is clear that the Department's probation staff is employed by the Department. However, when they act as probation officers, the Department's employees are subject to the provisions of O.C.G.A. § 15-11-24.2, which lists the duties of probation officers and does not distinguish between officers employed by the court and officers employed by the Department. Of particular note is O.C.G.A. § 15-11-24.2(6), which requires probation officers to "perform all other functions designated by this chapter or by order of the court pursuant thereto." The cardinal rule of statutory interpretation is that statutes must be construed in a manner that gives effect to the underlying legislative intent and purpose. See O.C.G.A. § 1-3-1(a). The plain language of that statute makes it clear that the General Assembly intended to authorize the juvenile court to direct probation officers to perform certain functions. See City of Jesup v. Bennett, 226 Ga. at 608. Thus, the juvenile court does, in fact, have authority to direct Department employees who are acting as probation officers. Of course, the court's authority to direct those employees is limited by the Georgia Code and the juvenile court rules; the court cannot direct them to do something they do not have authority to do. Therefore, it is my official opinion that the Department's probation staff may assist prosecuting attorneys in obtaining necessary reports and files and in creating delinquency petitions but may not conduct an accusatory proceeding. The Department's probation staff must also comply with valid court orders issued pursuant to O.C.G.A. § 15-11-24.2(6). Prepared by: JOSEPH DROLET Senior Assistant Attorney General