D.Evans - November 29, 2021 - Investigation of Misdemeanor Affidavits

550 HIGH STREET • SUITE 1200 • JACKSON, MISSISSIPPI 39201 POST OFFICE BOX 220 • JACKSON, MISSISSIPPI 39205 TELEPHONE (601) 359-3680 November 29, 2021 The Honorable Doug Evans District Attorney Fifth Circuit Court District Post Office Box 1262 Grenada, Mississippi 38902-1262 Re: Investigation of Misdemeanor Affidavits Dear Mr. Evans: The Office of the Attorney General has received your request for an official opinion. Background Facts You state that you have been requested by an attorney for a county board of supervisors—notably, not the county prosecutor—to investigate and make findings on the merits of misdemeanor affidavits filed in justice court. According to your request, these affidavits allege misdemeanor charges and would not be presented to a Grand Jury. However, your request does not state which criminal offenses are alleged in the affidavits. Questions Presented 1. Is it within the scope of authority of a district attorney to investigate misdemeanor affidavits filed in justice courts and make findings on the merits? 2. Would such investigations result in loss of liability exemptions stated in Mississippi Code Annotated Section 11-46-9? Brief Response 1. No. The ability to make findings on the merits of a misdemeanor affidavit filed in justice court rests within the sole province of the duly elected justice court judge. 2. Whether the Mississippi Tort Claims Act applies to a particular claim requires a factual determination, and this office cannot address questions of fact by official opinion. Hon. Doug Evans November 29, 2021 Page 2 550 HIGH STREET • SUITE 1200 • JACKSON, MISSISSIPPI 39201 POST OFFICE BOX 220 • JACKSON, MISSISSIPPI 39205 TELEPHONE (601) 359-3680 Applicable Law Section 25-31-11 sets forth the duties and responsibilities of district attorneys. Your first question asks whether the district attorney can, when requested, “investigate and then make a finding on the merits of” misdemeanor affidavits. The ability to make findings on the merits of a misdemeanor affidavit filed in justice court rests within the sole province of the duly elected justice court judge. With respect to your second question, whether the Mississippi Tort Claims Act applies to a particular claim requires a factual determination. MS AG Op., Sutton at *3 (Apr. 22, 2016) (“Whether a claim is subject to defenses, including the applicability of the Tort Claims Act, is a determination that must be made by the local government based on the facts of the claim.”). This office cannot address questions of fact by way of an official opinion. Miss. Code Ann. § 7-5-25. If this office may be of any further assistance to you, please do not hesitate to contact us. Sincerely, LYNN FITCH, ATTORNEY GENERAL By: /s/ Phil Carter Phil Carter Special Assistant Attorney General