AGO Opinion 85010

January 28, 1985
Senator Rex Haberman
Nebraska State Legislature
State Capitol
Lincoln, Nebraska 68509

Dear Senator Haberman:

You have requested our opinion in regard to LB 367. You ask whether .at the present time and under present statutes the county attorneys car; ask for assistance from this office.

" LB 367 proposes to establish a division of criminal prosecution within the office of the Attorney' General. This division would have one or more assistant attorney's' general assigned to the division. The bill provides that the primary duty shall be to assist county attorneys upon request in the prosecution of homicides, conspiracy and attempted homicides; felon~" theft of grain, felony violations of laws pertaining to banks and other financial institutions, and any conspiracy or attempt cases involving such theft or violations. Additionally, cases involving the prosecution of count>, officials and cases in which the count3" attorney has a conflict would be within the parameters of the bill.

Traditionally, the county attorney has been charged with enforcing the laws as the elected representative of the state within the various counties of the State of Nebraska. The county attorney's duties under statute and case law are relatively well developed. Generally, the trial level prosecutions within Nebraska have been handled by the county attorneys across the state. Appellate level criminal matters have been handled in the office of the Attorney General pursuant to Neb. Rev. Stat. $84-205(9) (Reissue 1981). Under Neb. Rev. Stat. S84-204 (Reissue 1981) the Attorney General has concurrent powers in each of the several counties of the state as the count~" attorneys in their respective counties. From the statutes it is clear that the Attorney General's power in this record is substantial. As a matter of historical precedent, however, the Attorney General’s office has not exercised these powers except in rare and unusual cases.

From 1975 to 1983 this office did provide a limited amount of assistance to county attorneys, primarily in homicide cases. This assistance was provided under existing statutes. However, budget constraints and unavailability of trained personnel caused the office to cease providing this assistance. If the question is limited to statutory authority, the assistance can be provided. However, when the budgetary constraints are considered the service cannot, at the present time, be provided.

Even if the bill as proposed is enacted, this office will require an appropriation before we will be able to provide such assistance.

Very truly yours,

Deputy Attorney General