Can a Georgia city and county sign a contract with each other for one to handle misdemeanor probation for both, and can a single probation entity work an entire judicial circuit?

Plain-English summary

The County and Municipal Probation Advisory Council asked three related questions about how misdemeanor probation services could be delivered across Georgia: are intergovernmental agreements for that purpose lawful, can a city contract with a county to provide them, and can a single entity operate misdemeanor probation across an entire judicial circuit?

The AG started with the Intergovernmental Contracts Clause in the Georgia Constitution. That provision authorizes the state, counties, municipalities, school districts, and other political subdivisions to contract with each other for joint services or for the provision of services, for terms up to 50 years, but only for "activities, services, or facilities which the contracting parties are authorized by law to undertake or provide."

The Greene County School District case set out the two-part test: the contract must concern services or facilities, and both parties must be authorized by law to undertake those services. Misdemeanor probation services were authorized by O.C.G.A. § 42-8-100, which authorized the chief judge of any court within a county, with the approval of the county governing authority, to contract with corporations, enterprises, or agencies for probation supervision and related services.

So the AG's answers were: yes, intergovernmental agreements for misdemeanor probation were lawful when both parties had probation-services authority. A municipal corporation's authority would depend on its individual charter and the general powers of municipalities under O.C.G.A. § 36-34-2. As for circuit-wide arrangements, judicial circuits were not units of government that could enter intergovernmental contracts. A single probation entity could serve an entire circuit only by entering separate § 42-8-100 agreements with the court of each county composing the circuit.

Currency note

This opinion was issued in 2012. 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.

Common questions

Q: Could a county outsource misdemeanor probation entirely to a private company?
A: Yes. O.C.G.A. § 42-8-100(g)(1) explicitly allowed contracts with "corporations, enterprises, or agencies." The intergovernmental analysis became relevant only when one of the parties was itself a government, like a city contracting with a neighboring county.

Q: Why did the AG say judicial circuits could not enter contracts?
A: A judicial circuit is a court-system grouping created by Article VI of the Georgia Constitution; it is not itself a county, municipality, or other political subdivision. Only entities listed in the Intergovernmental Contracts Clause can enter intergovernmental contracts.

Q: If a probation entity wanted to serve a four-county circuit, what did it actually have to do?
A: It had to enter four separate agreements, one with the chief judge of the court in each of the four counties, each approved by that county's governing authority, all complying with O.C.G.A. § 42-8-100.

Q: Did the chief judge act alone, or did the county also have to approve?
A: Both. The statute required the chief judge to enter the agreement "with the approval of the governing authority of that county." Approval by the county commission (or equivalent) was a statutory prerequisite.

Q: Was a city free to use just any probation provider for its municipal court cases?
A: A city could provide or contract for probation services only to the extent its charter and general municipal powers under O.C.G.A. § 36-34-2 authorized. The opinion did not survey individual city charters; it gave a general framework.

Background and statutory framework

Georgia's intergovernmental cooperation rules sit in Article IX, § III, ¶ I(a) of the state constitution. That clause makes it lawful for governments to share services and facilities, but only when both parties are independently authorized to perform those services. The provision predates modern public-private contracting and is the workhorse for shared library systems, joint water authorities, and now probation services.

The misdemeanor probation system in Georgia historically used a county-by-county model. O.C.G.A. § 42-8-100(g)(1) gave the chief judge of a county court (with county governing-authority approval) the power to contract for probation supervision, counseling, and collection of fines and fees. Many counties contracted with private misdemeanor probation companies, and some contracted with neighboring governments or shared infrastructure.

The Council's questions reflected the practical reality that a private probation company often wanted a single contract covering an entire judicial circuit. This opinion closed that door at the constitutional level: there had to be a separate authority-to-contract analysis for each unit of government involved.

Citations and references

Statutes:
- Ga. Const. Art. IX, § III, ¶ I(a) (Intergovernmental Contracts Clause)
- O.C.G.A. § 36-34-2 (general powers of municipal corporations)
- O.C.G.A. § 42-8-100 (probation supervision contracts)

Cases:
- Greene County Sch. Dist. v. Greene County, 278 Ga. 849 (2005) (two-part test for intergovernmental contracts)

Source

• Landing page: https://law.georgia.gov/opinions/2012-7

Original opinion text

You have requested my opinion on the legality of intergovernmental agreements for the delivery of probation services. Specifically, you have asked: (1) whether intergovernmental agreements for the provision of misdemeanor probation are legal under Georgia law, (2) whether a municipality can enter into an intergovernmental agreement with a county to provide misdemeanor probation services to a county, and (3) whether the operation of a circuit-wide misdemeanor probation entity is lawful. Intergovernmental contracts are authorized by the Georgia Constitution: The state, or any institution, department, or other agency thereof, and any county, municipality, school district, or other political subdivision of the state may contract for any period not exceeding 50 years with each other or with any other public agency, public corporation, or public authority for joint services, for the provision of services, or for the joint or separate use of facilities or equipment; but such contracts must deal with activities, services, or facilities which the contracting parties are authorized by law to undertake or provide. Ga. Const. Art. IX, § III, ¶ I(a). There are two requirements for a valid intergovernmental contract. "First, the contract must pertain to "the provision of services, or … the joint or separate use of facilities or equipment." Second, the contract "must deal with 'activities, services, or facilities which the contracting parties are authorized by law to undertake or provide.'" Greene County Sch. Dist. v. Greene County, 278 Ga. 849, 851 (2005) (footnotes omitted). Thus, intergovernmental agreements for probation services are permitted to the extent that the contracting parties are authorized to provide probation services. The authorization to establish a probation system is found in O.C.G.A. § 42‑8‑100, which provides that [t]he chief judge of any court within the county, with the approval of the governing authority of that county, is authorized to enter into written contracts with corporations, enterprises, or agencies to provide probation supervision, counseling, collection services for all moneys to be paid by a defendant according to the terms of the sentence imposed on the defendant as well as any moneys which by operation of law are to be paid by the defendant in consequence of the conviction, and other probation services for persons convicted in that court and placed on probation in the county. O.C.G.A. § 42‑8‑100(g)(1). O.C.G.A. § 42‑8‑100 authorizes county and municipal court judges to enter into agreements for probation services with "corporations, enterprises, or agencies." Intergovernmental agreements for such services, including probation services, are legal in instances in which both contracting parties are authorized by law to provide such service. Therefore, the authority of any municipal corporation to provide such probation services would be permissible but would be limited by the powers conferred upon the municipality in its individual charter and by the general powers granted to municipal corporations by law. See O.C.G.A. § 36‑34‑2. In regard to the provision of probation services on a circuit-wide basis, the same principles apply. The State of Georgia is divided into judicial circuits which may comprise multiple counties but not less than one county. See Ga. Const. Art. VI, § I, Para.VI. Judicial circuits, however, are not units of government that could enter into intergovernmental contracts. O.C.G.A. § 42‑8‑100 provides that judges within a county can enter into probation agreements, with the approval of their governing authority, for probation services to be provided to that county. There is no provision for judicial circuits to enter into such agreements. Thus, within a judicial circuit, the court of each county that the judicial circuit comprises must enter into a separate agreement for probation services and comply with O.C.G.A. § 42‑8‑100 to operate lawfully in Georgia. Therefore it is my official opinion that intergovernmental agreements for probation services are legal in instances in which the contracting parties are authorized by law to provide probation services. Also, when providing probation services for a judicial circuit, a probation entity must be authorized to provide the service and must enter into separate agreements with the court of each county that composes that judicial circuit. Prepared by: Angelique B. McClendon Assistant Attorney General