Cross references.

- Functions of county, municipal, and other housing authorities pertaining to provision of housing for persons engaged in national defense industries or activities, § 8-3-130 et seq.

Special license plates for members of United States military reserve, § 40-2-64.

Special license plates for members of Georgia National Guard, § 40-2-65.

Prohibition against employment discrimination by state agencies against servicemen's wives, § 45-2-9.

Editor's notes.

- By resolution (Ga. L. 1985, p. 561), the General Assembly directed the Department of Defense and the Department of Veterans Service to design and strike the Georgia Medal of Honor.

Law reviews.

- For note, "Rethinking the Role and Regulation of Private Military Companies: What the United States and United Kingdom Can Learn from Shared Experiences in the War on Terror," see 39 Ga. J. Int'l & Comp. L. 445 (2011).

CHAPTER 1 GENERAL PROVISIONS

Cross references.

- Custody disputes involving military parents, § 19-9-3.

38-1-1. Marital, birth, divorce, or death records supplied free to veterans, dependents, Department of Veterans Affairs, or veterans' organizations; requirements; county to pay certain fees.

  1. Any agency of this state or any county official obligated to provide copies or other evidence of the marital, birth, divorce, or death status of persons of this state shall furnish veterans, dependents of deceased veterans, the United States Department of Veterans Affairs, or any veterans' organization such copies or other evidence free of charge upon the following conditions:
    1. Where such copies or other evidence is to be used in proceedings for establishing disability or death claims with the United States Department of Veterans Affairs; and
    2. Where the request is made in writing by a veteran, a dependent of a deceased veteran, the legal representative of a veteran, the United States Department of Veterans Affairs, or any veterans' organization.
  2. In any county where the county official referred to in subsection (a) of this Code section is on a fee basis, the official shall be paid the fee for the service by the county. Payments shall be made on a monthly basis from county funds.

(Ga. L. 1953, Jan.-Feb. Sess., p. 117, §§ 1, 2; Ga. L. 1956, p. 614, § 1; Ga. L. 1990, p. 45, § 1.)

Cross references.

- Vital records generally, T. 31, C. 10.

RESEARCH REFERENCES

Am. Jur. 2d.

- 77 Am. Jur. 2d, Veterans and Veterans' Laws, § 3 et seq.

ALR.

- Judicial review of decision, on merits, of claim upon public pension fund, 117 A.L.R. 1408.

38-1-2. Political subdivisions authorized to furnish quarters, utilities, and services to nationally recognized veterans' organizations.

Subject to the direction of the public officer or authority in charge of a building, office, or meeting hall, political subdivisions of this state are authorized to furnish free of charge a building, office, and meeting hall for the exclusive use of the several nationally recognized veterans' organizations and their auxiliaries. The several nationally recognized veterans' organizations may have access at all times to such building, office, or meeting hall. Political subdivisions also have the right to furnish heat, light, utilities, furniture, and janitorial service at no cost to the veterans' organizations and their auxiliaries.

(Ga. L. 1947, p. 1181, § 1.)

CHAPTER 2 MILITARY AFFAIRS

Article 1 State Militia Generally.
Part 1 GENERAL PROVISIONS.
Part 2 ORGANIZED MILITIA.
Part 3 STATE DEFENSE FORCE.
Part 4 UNORGANIZED MILITIA.
Part 5 MILITARY RELATIONS WITH OTHER STATES.
Article 2 Military Administration.
Part 1 COMMANDER IN CHIEF AND STAFF.
Part 2 DEPARTMENT OF DEFENSE.
Part 3 ADJUTANT GENERAL AND OTHER EXECUTIVES.
Part 4 APPROPRIATIONS, FINANCE, AND ACQUISITION OF PROPERTY.
Part 5 ARMORIES AND OTHER FACILITIES.
Article 3 Personnel.
Part 1 OFFICERS.
Part 2 ENLISTED PERSONNEL.
Part 3 PAY, PENSIONS, AND ALLOWANCES.
Part 4 RIGHTS, PRIVILEGES, AND PROHIBITIONS.
Article 4 Active Duty Powers.
Article 5 Code of Military Justice.
Part 1 GENERAL PROVISIONS.
Part 2 APPREHENSION AND RESTRAINT.
Part 3 NONJUDICIAL PUNISHMENT.
Part 4 CLASSIFICATION OF COURTS-MARTIAL.
Part 5 CONVENING OF COURTS-MARTIAL.
Part 6 PRETRIAL PROCEDURE.
Part 7 TRIAL PROCEDURES.
Part 8 SENTENCES.
Part 9 REVIEW OF COURTS-MARTIAL.
Part 10 PUNITIVE PROVISIONS.
Part 11 MISCELLANEOUS PROVISIONS.
Cross references.

- North Georgia College Military Scholarships and North Georgia College Reserve Officers' Training Corps Grant Program, §§ 20-3-420 et seq. and20-3-430 et seq.

Grants to children of Georgia National Guard members, T. 20, C. 3, A. 7, P. 3, S. 10.

Powers of board of trustees of Georgia Military College, § 20-3-546.

Absentee voting generally, § 21-2-380 et seq.

Constituting of commissioned officers of armed services of United States as ex officio notaries public of state, § 45-17-30.

OPINIONS OF THE ATTORNEY GENERAL

Issuance of regulations superior to local laws.

- Adjutant general may issue regulations under Ga. L. 1955, p. 10 which are superior to local laws of the state, but only when the regulations pertain to the powers granted to the adjutant general under the terms of Ga. L. 1955, p. 10. 1954-56 Op. Att'y Gen. p. 558.

RESEARCH REFERENCES

Am. Jur. 2d.

- 77 Am. Jur. 2d, Veterans and Veterans' Laws, § 164.

ALR.

- Power to declare martial law apart from military occupation or operations, 24 A.L.R. 1183.

ARTICLE 1 STATE MILITIA GENERALLY

Cross references.

- Cancelable loan fund for Georgia National Guard Members, § 20-3-374.

Dividing of counties into militia districts, T. 36, C. 2.

Gold Star license plates, § 40-2-85.3.

PART 1 G ENERAL PROVISIONS

38-2-1. Short title.

This chapter may be cited as the "Georgia Military Forces Reorganization Act of 1955."

(Ga. L. 1955, p. 10, § 2.)

Cross references.

- Georgia Military Pension Fund, T. 47, C. 24, A. 1.

38-2-2. Definitions.

As used in this chapter, the term:

  1. "Active military service of the United States" and "in the armed forces of the United States" mean full-time duty in the army, navy, marine corps, air force, or coast guard of the United States.
  2. "Active service" and "active duty" mean military duty in or with a force of the organized militia (not including the inactive National Guard) or in the Military Division, Department of Defense, either in a full-time status or in a part-time status, depending upon the conditions under which the duty is performed.
  3. "Military" and "military and naval" mean army or land, air force or air, and navy or naval.
  4. "Military" or "military or naval" means army or land, air force or air, or navy or naval.
  5. "Military service of the state," as to military personnel, means service in or with a force of the organized militia or in the Military Division, Department of Defense.
  6. "National Guard" means the Georgia National Guard, the composition of which is set forth in Code Section 38-2-3.
  7. "Naval Militia" means the Georgia Naval Militia as may be organized hereafter.
  8. "Officer" or "commissioned officer" includes warrant officers.
  9. "On the active list" means on the rolls of a force of the organized militia, not including the inactive National Guard.
  10. "Organized militia," "all or any part of the organized militia," "organized militia or any part thereof," "any force of the organized militia," and "organized militia or any force thereof" mean, severally, the Army National Guard, the Air National Guard, the Georgia Naval Militia, when organized, and the State Defense Force, when organized, and include any unit, component, element, headquarters, staff, or cadre thereof as well as any member or members.

(Ga. L. 1955, p. 10, § 3; Ga. L. 1985, p. 356, § 1.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1986, commas were inserted before and after both instances of "when organized" in paragraph (10).

RESEARCH REFERENCES

Am. Jur. 2d.

- 53 Am. Jur. 2d, Military and Civil Defense, § 1 et seq.

C.J.S.

- 6 C.J.S., Armed Services, §§ 341, 345.

38-2-3. Division and composition of militia; membership of unorganized militia.

  1. The militia of the state shall be divided into the organized militia, the state reserve list, the state retired list, and the unorganized militia.
  2. The organized militia shall be composed of:
    1. An Army National Guard and an Air National Guard which forces, together with an inactive National Guard, when such is authorized by the laws of the United States and regulations issued pursuant thereto, shall comprise the Georgia National Guard;
    2. The Georgia Naval Militia whenever such a state force shall be duly organized; and
    3. The State Defense Force whenever such a state force shall be duly organized.
  3. The state reserve list and the state retired list shall include the persons who are lawfully carried thereon and such persons as may be transferred thereto or placed thereon by the Governor in accordance with this chapter.
  4. Subject to such exemptions from military duty as are created by the laws of the United States, the unorganized militia shall consist of all able-bodied male residents of the state between the ages of 17 and 45 who are not serving in any force of the organized militia or who are not on the state reserve list or the state retired list and who are, or who have declared their intention to become, citizens of the United States.

(Ga. L. 1916, p. 158, §§ 1, 3, 4; Code 1933, §§ 86-201, 86-209, 86-301, 86-401; Ga. L. 1951, p. 311, § 3; Ga. L. 1955, p. 10, § 4; Ga. L. 1985, p. 356, § 2.)

Law reviews.

- For article recommending more consistency in age requirements of laws pertaining to the welfare of minors, see 6 Ga. St. B.J. 189 (1969).

RESEARCH REFERENCES

C.J.S.

- 6 C.J.S., Armed Services, §§ 342, 343.

ALR.

- Enlistment or mustering of minors into military service, 137 A.L.R. 1467; 147 A.L.R. 1311; 148 A.L.R. 1388; 149 A.L.R. 1457; 150 A.L.R. 1420; 151 A.L.R. 1455; 151 A.L.R. 1456; 152 A.L.R. 1452; 153 A.L.R. 1420; 153 A.L.R. 1422; 154 A.L.R. 1448; 155 A.L.R. 1451; 155 A.L.R. 1452; 156 A.L.R. 1450; 157 A.L.R. 1449; 157 A.L.R. 1450; 158 A.L.R. 1450.

Constitutionality of statute providing for bounty or pensions for soldiers, 143 A.L.R. 1530.

38-2-4. Persons exempted from militia duty; exception.

Persons within this state who are not citizens thereof and resident aliens shall not be liable to militia duty, except in repelling local invasions or suppressing insurrections.

(Laws 1818, Cobb's 1851 Digest, p. 367; Code 1863, § 1598; Code 1868, § 1660; Code 1873, § 1665; Code 1882, § 1665; Civil Code 1895, § 1819; Civil Code 1910, § 2176; Code 1933, § 79-306.)

Cross references.

- Rights of citizens of other states while in Georgia generally, § 1-2-9.

Rights of aliens while in Georgia generally, § 1-2-11.

RESEARCH REFERENCES

Am. Jur. 2d.

- 3B Am. Jur. 2d, Aliens and Citizens, §§ 1649, 1679.

38-2-5. Federal call up of militia; Governor's duties; utilization of unorganized militia; effect of unit's absence.

When the militia of the state is called into federal service under the Constitution and laws of the United States, the Governor shall order out for service the organized militia or such part thereof as may be necessary; and, if the number available is insufficient, the Governor may call for and accept from the unorganized militia as many volunteers as are required for service in the organized militia. During the absence of the organized militia in the service of the United States, their state designations shall not be given to new organizations.

(Ga. L. 1955, p. 10, § 6.)

38-2-6. Ordering organized militia into active state service; Governor's duties; local officials' duties; declaration of state of emergency; pay.

  1. The Governor shall have power, in case of invasion, disaster, insurrection, riot, breach of the peace, combination to oppose the enforcement of the law by force or violence, or imminent danger thereof, or other grave emergency, to order all or any part of the organized militia into the active service of the state for such period, to such extent, and in such manner as he may deem necessary. Such power shall include the power to order the organized militia or any part thereof to function under the operational control of the United States army, navy, or air force commander in charge of the defense of any area within the state which is invaded or attacked or is or may be threatened with invasion or attack.
  2. Whenever any judge of a superior, city, or state court, sheriff, or mayor of a municipality shall apprehend the outbreak of insurrection, riot, breach of the peace, or combination to oppose the enforcement of the law by force or violence within the jurisdiction of which such officer is by law the conservator of the peace, or in the event of disaster or other grave emergency, it shall be the duty of the judge, sheriff, or mayor, when it appears that the unlawful combination or disaster has progressed beyond the control of the civil authorities, to notify the Governor, and the Governor may then, in his discretion, if he deems the apprehension well founded or the disaster or emergency of sufficient magnitude, order into the active service of the state for such period, to such extent, and in such manner as he may deem necessary all or any part of the organized militia.
  3. When the Governor orders into the active service of the state all or any portion of the organized militia as provided in this Code section, he shall declare a state of emergency in such locality and it shall be the duty of the Governor to confirm such declaration and order in writing which shall state the area into which the force of the organized militia has been ordered.
  4. The compensation of all officers and enlisted men while on duty or assembled pursuant to this Code section shall be paid in the manner prescribed by Code Section 38-2-250.

(Ga. L. 1916, p. 158, §§ 2, 3; Code 1933, §§ 86-207, 86-1302; Ga. L. 1951, p. 311, § 5; Ga. L. 1955, p. 10, § 7; Ga. L. 1983, p. 884, § 3-27.)

Cross references.

- Governor's role as commander-in-chief of state militia, Ga. Const., 1983, Art. V, Sec. II, Para. III.

Further provisions regarding emergency powers of Governor, §§ 38-3-22,38-3-51,45-12-29 et seq.

Further powers of Governor as to calling out of militia, §§ 45-12-27,45-12-28,45-12-31.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53 Am. Jur. 2d, Military and Civil Defense, § 31 et seq.

38-2-6.1. Request by Governor for members to report for active duty without first having declared an emergency.

The Governor is authorized and empowered to request individual members of the Georgia National Guard, with their consent, to report for duty into the active service of the state for the performance of any official duty in connection with National Guard activities without first having declared an emergency as provided for in Code Section 38-2-6 or 45-12-30; provided, however, that when requested to report for duty into the active service of the state, members of the organized militia may not be deployed to quell riots, insurrections, or a gross breach of the peace or to maintain order until an emergency has first been declared as provided in Code Section 38-2-6 or 45-12-30.

(Code 1981, §38-2-6.1, enacted by Ga. L. 1994, p. 654, § 1.)

38-2-6.2. National Guard Olympic support activities; reciprocal aid agreements or compacts with other states.

Repealed by Ga. L. 1996, p. 1018, § 1, effective September 1, 1996.

Editor's notes.

- This Code section was based on Code 1981, § 38-2-6.2, enacted by Ga. L. 1996, p. 1018, § 1.

38-2-7. Declaration of martial rule; area encompassed specifically designated.

Whenever any portion of the organized militia is employed pursuant to Code Section 38-2-6, the Governor, if in his judgment the maintenance of law and order will thereby be promoted, may declare by proclamation the area in which the troops are serving, or any specified portion thereof, to be under martial rule. The proclamation shall define the area which is under martial rule.

(Ga. L. 1955, p. 10, § 8.)

JUDICIAL DECISIONS

Martial law does not deprive state courts of criminal jurisdiction.

- Mere existence of martial law in a certain area does not necessarily deprive the state courts of jurisdiction of all crimes committed against the state law in that area. Welch v. State, 53 Ga. App. 255, 185 S.E. 390 (1936).

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 170, 172 et seq.

38-2-8. State reserve list; composition; active duty; length of service computations; applicable rules and regulations.

  1. Any commissioned or warrant officer of the organized militia may be transferred to the state reserve list on his own request, if approved by the adjutant general.
  2. Any commissioned or warrant officer of the organized militia whose assignment becomes excess personnel by reduction, disbandment, or reorganization of a unit or by denial, withdrawal, or termination of his federal recognition or for any other reason, unless transferred to the inactive National Guard, may be relieved from duty or command and may be transferred to the state reserve list.
  3. Any person who has served as a commissioned or warrant officer in the organized militia or in the armed forces of the United States and has been honorably discharged therefrom may be commissioned and placed on the state reserve list in the highest grade previously held by him after complying with such conditions as may be prescribed by regulations issued pursuant to this chapter.
  4. Upon the recommendation of the adjutant general, the Governor may order any person on the state reserve list to active duty in or with the organized militia for a period not to exceed three months, in which case the person shall rank in his grade from the date of such order.
  5. Time spent on the state reserve list shall not be credited in the computation of length of service for seniority, pay, promotion, or otherwise, or retirement or any of the privileges and exemptions pertaining thereto, except that time served on active duty by order of the Governor shall be so credited.
  6. The provisions of this chapter relative to the resignation, retirement, court-martial, dismissal, or discharge of commissioned or warrant officers of the organized militia, including dismissal or discharge on the findings of an efficiency or medical examining board, shall be applicable to commissioned or warrant officers on the state reserve list.

(Ga. L. 1916, p. 158, § 3; Code 1933, § 86-405; Ga. L. 1955, p. 10, § 14.)

38-2-9. State retired list; officers; enlisted persons; grade upon transfer to list; return to active duty; computation of time.

  1. Any member of the organized militia who has reached the age of 64 years may be retired for the reason of age and transferred to the state retired list by the Governor. A member may be retired for reason of age and transferred to the state retired list by the Governor before reaching 64 years of age in order to conform to the laws and regulations of the United States which are applicable to the organized militia.
  2. Any officer who has served for at least 20 years in the organized militia or in the organized militia and the armed forces of the United States combined, upon his request, may be transferred to the state retired list by the Governor in a grade which is one grade higher than the highest grade previously held by him during such service. In computing the 20 year period, service as an enlisted person shall be counted.
  3. Any warrant officer or enlisted person who has served for at least 20 years in the organized militia or in the organized militia and the armed forces of the United States combined, upon his request, may be transferred to the state retired list by the Governor in a grade equivalent to the highest grade held by him during such service. If the grade was of officer grade, subsection (b) of this Code section will govern.
  4. Upon the recommendation of the adjutant general, the Governor may order any person on the state retired list to return to active duty and serve on military courts or boards, perform staff duty in or with the organized militia, or, in time of emergency, perform any military duty in or with the organized militia. In any such case, the person so ordered shall rank in his grade at retirement from the date of the order.
  5. Time spent on the state retired list shall not be credited in the computation of length of service for seniority, pay, promotion, or otherwise, or any of the privileges and exemptions pertaining thereto, except that time served on active duty by order of the Governor shall be credited.

(Ga. L. 1951, p. 311, § 18; Ga. L. 1955, p. 10, § 15; Ga. L. 2005, p. 213, § 4/SB 258.)

Cross references.

- Credit for service in organized militia for purposes of Employees' Retirement System of Georgia, § 47-2-90.

OPINIONS OF THE ATTORNEY GENERAL

Requirement for transfer to retired list at higher grade.

- Officer must be a current member of the organized militia in order for the Governor to transfer the officer, upon certain conditions, to the retired list at one grade higher than the highest grade previously held. 1976 Op. Att'y Gen. No. 76-32.

Control requirement for transfer.

- Term "transferred" requires that the transferee (officer) be in a present condition or status over which the transferor (Governor) exercises authority or control, and that the transferor have authority or control to some extent over the position or status to which the transferee is transferred. 1976 Op. Att'y Gen. No. 76-32.

38-2-10. Use of National Guard in drug law enforcement, provision of medical care in medically underserved areas, and for youth opportunity training programs.

  1. In addition to any other authority provided by the Constitution and laws of this state, the Governor, as commander-in-chief of the organized militia of this state and in accordance with 32 U.S.C. Section 112, may:
    1. Authorize or direct the Georgia National Guard to assist and support federal, state, and local law enforcement agencies in drug interdiction, counterdrug activities, and drug demand reduction;
    2. Order or direct that properly licensed medical personnel of the Georgia National Guard provide medical care to civilians in medically underserved areas of this state under such terms and conditions as the Governor, in consultation with the commissioner of public health, shall determine appropriate, subject to any applicable laws and regulations of the United States; or
    3. Order or direct that the Georgia National Guard apply for and use federal funds to provide training, education, and other benefits to civilians in accordance with any federal laws or regulations authorizing National Guard participation.
    1. Whenever the Governor assigns duty to the adjutant general under this Code section, the adjutant general shall have the authority:
      1. To provide assistance to federal, state, and local law enforcement agencies upon request, including the use of military equipment and facilities, transportation, surveillance, drug seizure and destruction, language translation, and such other assistance as may be necessary and within the authority of the requesting law enforcement agency; provided, however, that where federal equipment is to be used, the adjutant general shall verify that the federal government has made such equipment available for use by the state; provided, further, that National Guard members involved in such activities are subject to the directions of the requesting law enforcement agency through the National Guard chain of command;
      2. To consult with appropriate state agencies concerning youth opportunity training programs and, in connection therewith, to establish a program utilizing National Guard facilities, the National Guard, and Department of Defense personnel to provide military-based training and other benefits to civilian youth pursuant to agreement with the federal government or otherwise;
      3. To establish a drug demand reduction program in which National Guard personnel and their families participate in programs designed to discourage drug use; and
      4. To provide medical care in medically underserved areas in accordance with directions of the Governor.
    2. To enter into agreements and do all things necessary or incidental to the performance of any such duty authorized in paragraph (1) of this subsection, including the execution of memoranda of agreement for assistance to federal, state, and local law enforcement agencies, the execution of grant agreements with the federal government, and the execution of other contracts and agreements.

(Code 1981, §38-2-10, enacted by Ga. L. 1994, p. 655, § 1; Ga. L. 2009, p. 453, § 1-6/HB 228; Ga. L. 2011, p. 705, § 6-5/HB 214.)

The 2011 amendment, effective July 1, 2011, substituted "commissioner of public health" for "commissioner of community health" in paragraph (a)(2).

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 147 (2011).

OPINIONS OF THE ATTORNEY GENERAL

National Guard is eligible to share in proceeds of drug-related forfeitures with respect to statutorily authorized activities. 1995 Op. Att'y Gen. No. 95-29.

National Guard is eligible to share in proceeds of drug-related forfeitures Even under the new Georgia Uniform Civil Forfeiture Procedure Act, O.C.G.A. § 9-16-1 et seq., the analysis of whether the Georgia National Guard may be designated as a "law enforcement agency" for purposes of sharing in proceeds of drug related property forfeitures made available under federal and state law remains unchanged; thus, the Georgia National Guard is a law enforcement agency eligible to share in proceeds of drug related forfeitures. 2018 Op. Att'y Gen. No. 18-2.

38-2-11. Implementation of federally approved counterdrug law enforcement plans.

  1. The Governor may request National Guard assistance, including but not limited to, personnel, supplies, and equipment, from the governor of another state for the purpose of implementing a federally approved counterdrug law enforcement plan under 32 U.S.C. Section 112.Such National Guard personnel from another state while performing duty in this state pursuant to a request made under this Code section shall have the same immunity from liability and prosecution as do National Guard personnel of this state performing such duty.
  2. The Governor may authorize the use of Georgia National Guard personnel and equipment outside the boundaries of the state under this Code section, if:
    1. A request is received from the governor of another state;
    2. The request evidences that the requesting governor has authority to make the request;
    3. The attorney general of the requesting state has acknowledged the Governor's authority and has certified that National Guard personnel requested from this state while performing duty in the requesting state shall have the same immunity from liability and prosecution as do National Guard personnel of the requesting state performing such duty; and
    4. The request relates to the performance of duty in a federally approved counterdrug law enforcement plan as authorized and funded under 32 U.S.C. Section 112.

(Code 1981, §38-2-11, enacted by Ga. L. 1994, p. 655, § 1.)

38-2-12. Use of National Guard as honor guards for veterans' funerals.

Subject to the appropriation by the General Assembly of funds for such purpose, the Governor may authorize or direct Georgia National Guard personnel to serve while on state active duty as honor guard detail for veterans' funerals on appropriate occasions. The adjutant general shall request reimbursement for the pay and allowances due to such members ordered to such duty.

(Code 1981, §38-2-12, enacted by Ga. L. 1998, p. 237, § 1.)

PART 2 O RGANIZED MILITIA

Cross references.

- Educational loans to members of Georgia National Guard, § 20-3-374.

Purchase of liability insurance and other benefits for members of organized militia serving on state active duty, § 45-9-2.

38-2-20. Land force; Army National Guard.

The land force of the organized militia shall be the Army National Guard and shall comprise the army units which are a part of the Georgia National Guard, including the personnel who are enlisted, appointed, or commissioned therein. All persons who are members of the Army National Guard shall be federally recognized as such.

(Ga. L. 1916, p. 158, § 3; Code 1933, § 86-401; Ga. L. 1951, p. 311, § 16; Ga. L. 1955, p. 10, § 27.)

38-2-21. Air force; Air National Guard.

The air force of the organized militia shall be the Air National Guard and shall comprise the air units which are a part of the Georgia National Guard, including the personnel who are enlisted, appointed, or commissioned therein. All persons who are members of the Air National Guard shall be federally recognized as such. The army aviation units of the National Guard shall not be considered air units within the meaning of this chapter.

(Ga. L. 1955, p. 10, § 28.)

38-2-22. Naval force; Naval Militia.

  1. The naval force of the organized militia shall be the Georgia Naval Militia and shall comprise the units and personnel forming the Naval Militia of the state as may be organized, including the personnel who are enlisted, appointed, or commissioned therein. All persons who shall become members of the Georgia Naval Militia shall be members of the United States naval reserve or the United States marine corps reserve.
  2. Should units of the naval militia be tendered to the state by the United States, the Governor is authorized in his discretion to accept them.

(Ga. L. 1916, p. 158, § 4; Code 1933, § 86-301; Ga. L. 1951, p. 311, § 26; Ga. L. 1955, p. 10, § 29.)

38-2-23. State Defense Force.

The State Defense Force, whenever such a state force shall be duly organized under the Constitutions and laws of the United States and of this state, shall be a force of the organized militia.

(Ga. L. 1955, p. 10, § 30; Ga. L. 1985, p. 356, § 3.)

38-2-24. Organizational and training guidelines.

The forces of the organized militia shall be organized, armed, disciplined, governed, administered, and trained as prescribed by the laws of the United States and by this chapter and the regulations issued thereunder.

(Ga. L. 1951, p. 311, § 20; Ga. L. 1955, p. 10, § 31.)

38-2-25. Assemblies; annual training; special duty; active duty; declaration of emergency.

  1. Members and units of the organized militia shall assemble for drill or other equivalent training, instruction, or duties during each year and shall participate in field training, encampments, maneuvers, schools, conferences, cruises, or other similar duties each year as may be prescribed by the laws of the United States and by this chapter and the regulations issued thereunder; provided, however, that no assembly of any unit of the organized militia shall be ordered in time of peace for any day during which a state or federal election shall be held, except in case of disaster, riot, invasion, or insurrection, or imminent danger thereof.
  2. Members of the organized militia may be ordered by the Governor or under his authority to perform special duty, including but not limited to duty in a judicial proceeding or court of justice conducted pursuant to Article 5 of this chapter or as a member of or in any other capacity with any military board or as an investigating officer or as a medical examiner.
  3. Members and units of the organized militia may be ordered by the Governor to state active duty when in his judgment there exists a possibility of imminent danger of disaster, riot, insurrection, or gross breach of the peace; provided, however, that, when so called to state active duty, members and units may not be deployed to quell riots, insurrection, or gross breach of the peace or to maintain order until an emergency has first been declared as provided in Code Section 38-2-6 or 45-12-30.
  4. Members of the organized militia, with their consent, may be ordered by the Governor to state active duty for any lawful purpose or purposes and without pay and allowances or other compensation, except as specifically set forth in such orders, but with all other privileges, rights, benefits, and immunities provided by the military laws or other statutes of this state; provided, however, that, when so called to state active duty, members of the organized militia may not be deployed to quell riots, insurrections, or a gross breach of the peace or to maintain order until an emergency has first been declared as provided in Code Section 38-2-6 or 45-12-30.

(Ga. L. 1916, p. 158, § 3; Code 1933, § 86-801; Ga. L. 1951, p. 311, § 20; Ga. L. 1955, p. 10, § 32; Ga. L. 1969, p. 228, § 1; Ga. L. 1991, p. 1393, § 1.)

38-2-26. Maintenance of armories and training facilities for militia units.

Unless the same shall be furnished by the United States, counties, or municipal corporations, the state shall provide armory accommodations, bases, camps, target ranges, and mooring and other facilities and shall maintain the same for units of the Army National Guard, the Air National Guard, and the Naval Militia allotted to the state under the laws of the United States, accepted by the Governor, and organized under the authority of this chapter.

(Ga. L. 1955, p. 10, § 33.)

38-2-27. Organization of militia units to conform to federal regulations; Governor's organizational powers; restrictions on disbanding units.

  1. The Governor shall conform the organization of the Georgia National Guard and the Georgia Naval Militia, including the composition of all units thereof, to the organization of National Guard and Naval Militia units prescribed by the laws of the United States and the regulations issued thereunder.
  2. For the purposes stated in subsection (a) of this Code section, the Governor is authorized:
    1. To organize, reorganize, or disband any unit, headquarters, or staff therein;
    2. To increase or decrease the number of commissioned officers, commissioned warrant officers, warrant officers, petty officers, and noncommissioned officers of any grade therein; and
    3. To increase or decrease the strength of the Georgia National Guard and the Georgia Naval Militia.
  3. Notwithstanding the provisions of subsection (b) of this Code section, no organization of the Georgia National Guard, the members of which shall be entitled to and shall have received compensation under 32 U.S.C. Section 104(f), as amended, shall be disbanded without the consent of the President of the United States; nor, without such consent, shall the commissioned or enlisted strength of any organization in the Georgia National Guard be reduced below the minimum prescribed therefor by the President of the United States.

(Ga. L. 1951, p. 311, §§ 4, 17; Ga. L. 1955, p. 10, § 34.)

OPINIONS OF THE ATTORNEY GENERAL

Operation of local emergency management unit.

- Local unit director is responsible for operation of local emergency management unit during declared emergency, subject to direction of governing authority of applicable political subdivision. 1982 Op. Att'y Gen. No. 82-19.

38-2-28. Inactive National Guard; composition.

The inactive National Guard shall consist of the persons commissioned, appointed, or enlisted therein, such officers and enlisted men as may be transferred thereto from the Army National Guard and the Air National Guard, and such persons as may be enlisted therein under the laws of the United States and the regulations issued thereunder.

(Ga. L. 1955, p. 10, § 35.)

38-2-29. Credit for active federal service.

For all purposes under this chapter, members of the organized militia who enter the active military service of the United States in time of war or under a call, order, or draft by the President or who enter and serve on active duty in the military service of the United States in time of peace and who thereafter return to the military service of the state shall be entitled to credit for time so served as if such service had been rendered to the state.

(Ga. L. 1955, p. 10, § 36.)

38-2-30. Resumption of membership in organized militia by National Guard personnel on release from active federal service.

Upon their release from the active service of the United States, commissioned officers, warrant officers, and enlisted personnel of the organized militia who have been in the active military service of the United States under call or order into service shall resume their membership in the organized militia as provided in the laws of the United States, regulations issued pursuant thereto, and regulations issued pursuant to this chapter.

(Ga. L. 1955, p. 10, § 37.)

38-2-31. Purchase and issue of military property; emergency purchases; disposal of obsolete property.

  1. Under the direction of the Governor, the adjutant general shall authorize the purchase of such military property as may be required for the use of the organized militia. In extreme emergencies, however, the commanding officer of any force of the organized militia on active service may purchase such necessities as are required for the immediate use and care of his command. A report of such purchases shall be made forthwith to the adjutant general.
  2. No military property shall be issued to persons or organizations other than those belonging to the organized militia and such forces as may be organized pursuant to Code Section 38-2-70. Obsolete ordnance property of the state, however, may be issued by the adjutant general, with the approval of the Governor, to municipalities and to educational, patriotic, and charitable organizations under such conditions as may be prescribed by regulations issued pursuant to this chapter.

(Ga. L. 1916, p. 158, § 3; Code 1933, §§ 86-902, 86-1101, 86-1102; Ga. L. 1951, p. 311, § 22; Ga. L. 1955, p. 10, § 38.)

Cross references.

- State purchasing generally, § 50-5-50 et seq.

38-2-32. Responsibility for military property or funds; bond; pay deductions for lost or damaged equipment; action by Attorney General to recover damages.

  1. Military property of the state and of the United States shall be issued, safeguarded, maintained, accounted for, inventoried, inspected, surveyed, and disposed of as provided in applicable laws of the United States, regulations issued thereunder, and regulations issued pursuant to this chapter.
  2. Every officer of the organized militia responsible for military property or funds of the state or of the United States shall give bond with good and sufficient security to the state in such amount as shall be determined and approved by the adjutant general, conditioned upon the safekeeping, proper use and care, and prompt surrender of the property or funds for which the officer may be properly responsible. The premiums for such bonds are to be paid from the funds of the Military Division, Department of Defense.
  3. When military property is lost, damaged, or destroyed through the negligence or fault of a member of the organized militia, the amount determined as the value of the property or the cost of repairing the same may be collected from any pay or allowance due or to become due him from the state.
  4. An action may be maintained in the name of the state in any court having jurisdiction thereof by the Attorney General upon the request of the adjutant general to recover from a member or former member of the organized militia found responsible for military property lost, damaged, or destroyed through his negligence or fault, the amount determined as the value of the property or the cost of repairing the same.

(Ga. L. 1916, p. 158, § 3; Code 1933, §§ 86-1101, 86-1102, 86-1103; Ga. L. 1955, p. 10, § 39.)

PART 3 S TATE DEFENSE FORCE

38-2-50. Creation or disbandment; organization and administration; commander.

The State Defense Force may be created, established, maintained, or disbanded by the Governor at any time when such action is authorized under federal law. It shall be organized, armed, equipped, disciplined, governed, administered, and trained as prescribed by this chapter and the regulations issued thereunder, in conformance with the laws of the United States. Whenever such a state force shall be organized, it shall be commanded by a brigadier general.

(Ga. L. 1917, p. 91, § 1; Code 1933, § 86-1501; Ga. L. 1951, p. 311, § 27; Ga. L. 1955, p. 10, §§ 30, 55; Ga. L. 1985, p. 356, § 4.)

Cross references.

- Workers' Compensation applicability to the Georgia National Guard and the State Defense Force, § 34-9-1.

38-2-51. Authority of Governor.

  1. In order to conform the organization of the State Defense Force to the organization of such state military forces as may be prescribed by the laws of the United States and regulations issued thereunder, the Governor may organize, activate, increase, change, divide, consolidate, disband, reactivate, or reorganize any unit, headquarters, staff, or cadre of the State Defense Force and may prescribe the composition and types of units, the type of organization, and the system of drill or instruction to be used in training such units.
  2. For the purposes set forth in subsection (a) of this Code section, the Governor is authorized to fix, increase, or decrease the strength of any unit, headquarters, staff, or cadre of the State Defense Force, including the number of commissioned officers, warrant officers, noncommissioned officers, and other enlisted personnel of any grade in any such unit, headquarters, staff, or cadre, and to alter the grades of officers, warrant officers, and noncommissioned officers.

(Ga. L. 1917, p. 91, § 2; Code 1933, § 86-1502; Ga. L. 1951, p. 311, § 27; Ga. L. 1955, p. 10, § 56; Ga. L. 1985, p. 356, § 5.)

Cross references.

- Georgia Military Pension Fund, T. 47, C. 24, A. 1.

RESEARCH REFERENCES

C.J.S.

- 6 C.J.S., Armed Services, § 342.

38-2-52. Detail of officers from retired and reserve lists and National Guard to State Defense Force.

  1. Upon the recommendation of the adjutant general, the Governor may order any officer on the state reserve list or on the state retired list to active duty with the State Defense Force, in which case the officer shall rank in his grade from the date of the order. The officer may be relieved from active duty and may be returned to the reserve list or retired list in the discretion of the Governor.
  2. Upon the recommendation of the adjutant general, the Governor may detail in his grade any commissioned or warrant officer in the Georgia National Guard, in addition to his other duties, to duty with the State Defense Force or any unit, headquarters, staff, or cadre thereof; and the officer may be relieved from such detail in the discretion of the Governor.

(Ga. L. 1951, p. 311, § 28; Ga. L. 1955, p. 10, § 57; Ga. L. 1985, p. 356, § 6.)

38-2-53. Detail of National Guard enlisted personnel to State Defense Force.

Enlisted persons of the Georgia National Guard may be detailed by the adjutant general to duty with the State Defense Force or any unit, headquarters, staff, or cadre thereof; and such persons may be relieved from such detail in the discretion of the adjutant general.

(Ga. L. 1951, p. 311, § 29; Ga. L. 1955, p. 10, § 58; Ga. L. 1985, p. 356, § 7.)

38-2-54. Duties, privileges, and immunities.

All duties imposed by the military law or other statutes of the state or by regulations issued thereunder upon units, commissioned officers, warrant officers, and enlisted personnel of the organized militia are imposed upon the units, commissioned officers, warrant officers, and enlisted personnel, respectively, of the State Defense Force. All rights, privileges, and immunities conferred by the military law or other statutes of the state or by regulations issued thereunder upon the units, commissioned officers, warrant officers, and enlisted personnel of the Georgia National Guard or of the organized militia are conferred upon the units, commissioned officers, warrant officers, and enlisted personnel, respectively, of the State Defense Force except as otherwise prescribed in this chapter. Such rights, privileges, and immunities include relief from civil or criminal liability for acts done while on duty; rights to pay, allowances, and other compensation; expenses and subsistence; arms, uniforms, and equipment; provision, maintenance, use, and control of armories; eligibility to appointment on the military staff of the Governor; exemption from civil process and from jury duty; right of way; right to wear the uniform and to parade with firearms; and all other rights, privileges, and immunities created by statute or custom not hereinbefore specifically enumerated.

(Ga. L. 1951, p. 311, §§ 34, 38, 39, 42; Ga. L. 1955, p. 10, § 59; Ga. L. 1985, p. 356, § 8; Ga. L. 2002, p. 1160, § 1; Ga. L. 2015, p. 287, § 1/SB 69.)

The 2015 amendment, effective July 1, 2015, deleted "; provided, however, that the provisions of Code Sections 38-2-279 and 38-2-280 shall not be applicable to personnel of the State Defense Force" from the end of the second sentence.

Cross references.

- Privilege from arrest of active duty military personnel, § 17-4-2.

Rights and privileges of members of organized militia, § 38-2-270 et seq.

RESEARCH REFERENCES

ALR.

- Official immunity of state national guard members, 52 A.L.R.4th 1095.

Construction and application of 37 U.S.C.A. § 206, providing compensation for military reserves and members of National Guard with respect to inactive-duty training, 73 A.L.R. Fed. 2d 27.

38-2-55. Use and operation of state property.

Serving members of the State Defense Force are authorized to use and operate state property of the Georgia Department of Defense and other state agencies, including without limitation vehicles, as may be necessary for the accomplishment of training and fulfillment of assigned missions; provided, however, that the use of such property shall not be allowed if such use will interfere with the function and training of the National Guard or any state agency.

(Code 1981, §38-2-55, enacted by Ga. L. 2003, p. 606, § 1.)

RESEARCH REFERENCES

ALR.

- Construction and application of 37 U.S.C.A. § 206, providing compensation for military reserves and members of National Guard with respect to inactive-duty training, 73 A.L.R. Fed. 2d 27.

PART 4 U NORGANIZED MILITIA

38-2-70. Organizations from unorganized militia; applicable regulations; enlistment and volunteers.

To the extent permitted by the Constitution and laws of the United States, the Governor may:

  1. Order into active state service, recognize existing, or authorize the establishment of organizations of the unorganized militia, of designated classes thereof, or of volunteers therefor, as he may deem to be for the public interest;
  2. Prescribe for those organizations enumerated in paragraph (1) of this Code section such parts of the regulations governing the organized militia as may be applicable thereto or establish such regulations therefor, or both, as he may deem proper; and
  3. Provide for the separate organization of the unorganized militia and authorize the enlistment in such organizations of persons volunteering for such service who are not otherwise subject to military duty under Code Section 38-2-3.

(Ga. L. 1916, p. 158, § 2; Code 1933, §§ 86-206, 86-210; Ga. L. 1955, p. 10, § 9.)

38-2-71. Registration of members of unorganized militia.

Whenever he shall deem it necessary, the Governor may direct the members of the unorganized militia to present themselves for and submit to registration at such time and place and in such manner as may be prescribed by regulations issued pursuant to Code Section 38-2-110.

(Ga. L. 1916, p. 158, § 2; Code 1933, § 86-202; Ga. L. 1955, p. 10, § 5.)

38-2-72. Volunteers or draftees from unorganized militia serving in organized militia; draft of unorganized militia; compensation and duration of duty.

  1. Whenever it is necessary in case of invasion, disaster, insurrection, riot, breach of the peace, or combination to oppose the enforcement of the law by force or violence, or imminent danger thereof, or whenever it is necessary to maintain the organized militia or any force thereof at the number required for public safety or prescribed by the laws of the United States, the Governor may call for and accept from the unorganized militia as many volunteers as are required for service in the organized militia or he may direct the members of the unorganized militia or such of them as may be necessary to be drafted into the organized militia or any force thereof.
  2. Whenever it is necessary in time of war or in case of invasion, disaster, or other like emergency, or imminent danger thereof, the Governor may direct the members of the unorganized militia or such of them as may be necessary to be drafted under such regulations as he may prescribe into the active service of the state and to serve as directed by him.
  3. Whenever members of the unorganized militia are drafted into the active service of the state, they shall serve for such period as the Governor may direct, not to exceed the duration of the emergency for which they may be drafted. The compensation of all members of the unorganized militia, while on duty or assembled pursuant to this Code section, shall be paid in the manner prescribed by Code Section 38-2-250.

(Ga. L. 1916, p. 158, § 2; Code 1933, § 86-205; Ga. L. 1951, p. 311, §§ 11, 12; Ga. L. 1955, p. 10, § 10.)

Cross references.

- Emergency powers of Governor generally, §§ 38-3-22,38-3-51,45-12-29 et seq.

38-2-73. Failure to appear for registration or draft; penalty.

  1. It shall be unlawful for any member of the unorganized militia who is ordered to register or to be drafted under Code Sections 38-2-71 and 38-2-72 to fail to appear at the time and place designated in such order.
  2. Any person who commits the offense described in subsection (a) of this Code section shall be guilty of a misdemeanor.

(Ga. L. 1916, p. 158, § 2; Code 1933, § 86-208; Ga. L. 1951, p. 311, § 15; Ga. L. 1955, p. 10, §§ 11, 106.)

PART 5 M ILITARY RELATIONS WITH OTHER STATES

38-2-90. Service outside state; application of state military law to such service.

  1. The Governor may order the organized militia or any part thereof to serve outside the borders of the state or of the United States in order to perform military duty of every description; to participate in parades, reviews, cruises, conferences, encampments, maneuvers, or other training; to participate in small arms and other military competitions; and to attend service schools.
  2. This chapter shall apply to the members of the organized militia while serving outside the state and while going to and returning from such service outside the state in like manner and to the same extent as while serving within the state.

(Ga. L. 1951, p. 311, § 24; Ga. L. 1955, p. 10, § 16.)

38-2-91. Rendering assistance to another state's armed forces; Governor's request and recall; requesting assistance for this state.

  1. Upon the request of the governor of another state, the Governor in his discretion may order all or any portion of the organized militia to assist the military or police forces of the other state who are actually engaged in defending the other state. Such forces may be recalled by the Governor at his discretion.
  2. The Governor in his discretion may request the governor of another state to order all or any portion of the organized militia of the other state to assist the military or police forces of this state who are actually engaged in defending this state.

(Ga. L. 1916, p. 158, § 3; Code 1933, §§ 86-1411, 86-1412; Ga. L. 1951, p. 311, § 24; Ga. L. 1955, p. 10, §§ 17, 18.)

38-2-92. Fresh pursuit into or beyond state; surrender; surrender not waiver of extradition.

  1. Any organization, unit, or detachment of the organized militia, upon order of the officer in immediate command thereof, may continue in fresh pursuit of insurrectionists, saboteurs, enemies, or enemy forces beyond the borders of this state into another state until they are apprehended or captured by the militia organization, unit, or detachment or until the military forces of the other state or the forces of the United States have had a reasonable opportunity to take up the pursuit or to apprehend or capture such persons; provided, however, that the other state shall have given authority by law for the pursuit by the forces of this state. Any such persons who shall be apprehended or captured in the other state by an organization, unit, or detachment of the forces of this state shall, without unnecessary delay, be surrendered to the military or police forces of the state in which they are taken or to the United States; but the surrender shall not constitute a waiver by this state of its right to extradite or prosecute the persons for any crime committed in this state.
  2. Any military forces or organization, unit, or detachment thereof of another state which is in fresh pursuit of insurrectionists, saboteurs, enemies, or enemy forces may continue such pursuit into this state until the military or police forces of this state or the forces of the United States have had a reasonable opportunity to take up the pursuit or to apprehend or capture such persons and are authorized to arrest or capture the persons within this state while in fresh pursuit. Any such persons who shall be captured or arrested by the military forces of the other state while in this state shall, without unnecessary delay, be surrendered to the military or police forces of this state to be dealt with according to law. This Code section shall not be construed so as to make lawful any arrest in this state which would otherwise be unlawful.

(Ga. L. 1951, p. 311, § 24; Ga. L. 1955, p. 10, §§ 17, 18.)

38-2-93. Compacts for military aid authorized.

  1. The Governor is authorized to enter into, amend, supplement, and implement agreements or compacts with the executive authorities of other states providing for mutual military aid and matters incidental thereto, in case of invasion or other hostile action, disaster, insurrection, or imminent danger thereof.
  2. The agreements or compacts may include but shall not be limited to provisions for joint military action against a common enemy; for the protection of bridges, tunnels, ferries, pipelines, communication facilities, and other vital installations, plants, and facilities; for the military support of emergency management agencies; for the fresh pursuit, by the organized militia or military forces or any part thereof of a state into the jurisdiction of any other state, of persons acting or appearing to act in the interest of an enemy government or seeking or appearing to seek to overthrow unlawfully the government of the United States or any state; for the powers, duties, rights, privileges, and immunities of the members of the organized militia or military forces of any state while so engaged outside their own jurisdiction; for such other matters as are of military nature, or incidental thereto, and which the Governor may deem necessary or proper to promote the health, safety, defense, and welfare of the people of this state; and for the allocation of all costs and expenses arising from the planning and operation of the agreements or compacts.

(Ga. L. 1955, p. 10, § 19.)

Cross references.

- Cooperation with other states generally, T. 28, C. 6.

ARTICLE 2 MILITARY ADMINISTRATION

PART 1 C OMMANDER IN CHIEF AND STAFF

38-2-110. Governor as militia commander in chief; issuance and effect of regulations.

The Governor shall be the commander in chief of the militia of the state. The Governor is authorized to issue regulations for the government of the militia. Regulations issued by the Governor shall have the same force and effect as this chapter, but they shall conform to the laws and regulations of the United States relating to the organization, discipline, and training of the militia; to this chapter; and, as nearly as practicable, to the laws and regulations governing the army, navy, and air force of the United States. The rules and regulations in force on February 2, 1955, not inconsistent with this chapter, shall remain in force until new rules and regulations are approved and promulgated.

(Ga. L. 1916, p. 158, § 1; Code 1933, §§ 86-101, 86-102; Ga. L. 1951, p. 311, § 4; Ga. L. 1955, p. 10, § 5.)

Cross references.

- Commander in chief, Ga. Const., 1983, Art. V, Sec. II, Para. III.

OPINIONS OF THE ATTORNEY GENERAL

Adjutant General's authority includes the power to control the activities of the State Defense Force to prescribe such officers as may be proper, and to plan and provide for training of the State Defense Force in a manner consistent with the law and regulations prescribed by the Governor. If the Governor directs, the Adjutant General may also prescribe regulations, but the Governor does not have authority to appoint commissioned officers. 1992 Op. Att'y Gen. No. 92-2.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53 Am. Jur. 2d, Military and Civil Defense, §§ 31, 32.

C.J.S.

- 6 C.J.S., Armed Services, § 342.

38-2-111. Personal aides-de-camp; appointment; commissions; length of service; duties.

The Governor's personal staff shall consist of one chief of aides-de-camp, with rank of brigadier general; two assistant chiefs of aides-de-camp, with rank of colonel; all other aides-de-camp shall be appointed with the rank of lieutenant colonel. The selection of aides-de-camp shall be without regard to previous military service, sex, or age limit; and the commissions of all of these officers shall expire with the expiration of the term of the Governor making the appointment. All appointments will be in either the army or air force. Officers of the National Guard shall be eligible to appointment to any of the ranks or the offices of aide-de-camp provided for, but such appointments shall not vacate or affect their status as commissioned officers in the National Guard in which they are serving. The aides-de-camp shall perform such personal and ceremonial duties pertaining to their office as may be required of them by the Governor.

(Ga. L. 1916, p. 158, § 1; Ga. L. 1921, p. 195, § 1; Ga. L. 1931, p. 198, § 1; Code 1933, §§ 86-103, 86-104; Ga. L. 1951, p. 311, § 4; Ga. L. 1955, p. 10, § 12; Ga. L. 1963, p. 10, § 1.)

38-2-112. Naval advisor and aide-de-camp; requirements; length of service.

The Governor shall appoint a naval advisor and aide-de-camp, with the rank of captain. No person shall be eligible to hold the office of naval advisor unless he has held a commission in the United States naval service of the rank of lieutenant commander or above and has served not less than two years therein. The naval advisor shall perform such services and duties as the Governor may require, and his commission shall expire with the expiration of the term of the Governor making the appointment.

(Ga. L. 1916, p. 158, § 1; Ga. L. 1921, p. 195, § 1; Ga. L. 1931, p. 198, § 1; Code 1933, §§ 86-103, 86-104; Ga. L. 1951, p. 311, § 26; Ga. L. 1955, p. 10, § 13.)

PART 2 D EPARTMENT OF DEFENSE

38-2-130. Creation; executive head; definition.

There shall be an agency of the state government to be known as the Department of Defense of the State of Georgia which shall be composed of the military agency as provided in the laws of this state. The adjutant general shall be the executive head of the Department of Defense.

(Ga. L. 1951, p. 311, § 6; Ga. L. 1955, p. 10, § 20; Ga. L. 1972, p. 1015, § 901; Ga. L. 1992, p. 1258, § 1.)

Cross references.

- Creation of Emergency Management Division, Department of Defense, § 38-3-20.

OPINIONS OF THE ATTORNEY GENERAL

Authority of Adjutant General.

- State Defense Force is subject to the direct authority of the Adjutant General as executive head of the Department of Defense. 1992 Op. Att'y Gen. No. 92-2.

38-2-131. Military division authorized; executive head; definition.

There shall be within the Department of Defense, as a division thereof, a state military agency which shall be styled and known as the "Military Division, Department of Defense" with the adjutant general as the executive head thereof.

(Ga. L. 1951, p. 311, § 7; Ga. L. 1955, p. 10, § 21; Ga. L. 1982, p. 3, § 38.)

OPINIONS OF THE ATTORNEY GENERAL

Authority of Adjutant General.

- State Defense Force is subject to the direct authority of the Adjutant General as executive head of the Department of Defense. 1992 Op. Att'y Gen. No. 92-2.

38-2-132. Administration of militia and Department of Defense; personnel; State Personnel Board.

The militia of the state shall be commanded and its affairs administered pursuant to law by the Governor, as commander in chief, through the Department of Defense and the military division thereof which shall consist of the adjutant general, two assistant adjutants general, and such other officers, enlisted personnel, and civilian employees as the adjutant general shall from time to time prescribe; provided, however, that nothing in this Code section shall be construed to prejudice the status under the rules of the State Personnel Board of any person employed in the Military Division, Department of Defense. Such other officers, enlisted personnel, and civilian employees shall perform such duties as may be required by the adjutant general who shall fix their compensation subject to the rules of the State Personnel Board.

(Ga. L. 1951, p. 311, § 8; Ga. L. 1955, p. 10, § 22; Ga. L. 2009, p. 745, § 1/SB 97; Ga. L. 2012, p. 446, § 2-60/HB 642.)

The 2012 amendment, effective July 1, 2012, in this Code section, substituted "in this Code section" for "herein" and substituted "rules of the State Personnel Board" for "State Personnel Administration" in two places.

Editor's notes.

- Ga. L. 2012, p. 446, § 3-1/HB 642, not codified by the General Assembly, provides that: "Personnel, equipment, and facilities that were assigned to the State Personnel Administration as of June 30, 2012, shall be transferred to the Department of Administrative Services on the effective date of this Act." This Act became effective July 1, 2012.

Ga. L. 2012, p. 446, § 3-2/HB 642, not codified by the General Assembly, provides that: "Appropriations for functions which are transferred by this Act may be transferred as provided in Code Section 45-12-90."

PART 3 A DJUTANT GENERAL AND OTHER EXECUTIVES

38-2-150. Adjutant general - Eligibility; appointment; compensation; bond.

There shall be an adjutant general of the state who shall be appointed by the Governor for a term concurrent with the term of the Governor appointing such person and who shall serve as such at the pleasure of the Governor. The adjutant general shall have not less than the rank of a major general, the specific rank to be determined by the Governor. The adjutant general shall not be less than 30 nor more than 65 years of age. No person shall be eligible to hold the office of adjutant general unless he or she holds or has held a commission of at least the rank of field grade or the equivalent in the organized militia of the state, in the armed forces of the United States, or in a reserve component thereof and shall have served not less than five years in one or more of such services at the time of his or her appointment. The adjutant general shall receive the pay and allowances for his or her rank as provided by law for an officer of equivalent rank in the regular armed forces of the United States. The Governor shall require the adjutant general to give bond to the state, conditioned on the faithful discharge of the duties of the office, in the sum of $10,000.00 with good and sufficient security, to be approved by the Governor. Notwithstanding any other provisions of law, the adjutant general shall not be subject to the provisions of subsection (e) of Code Section 38-2-279, relating to pay for 18 days' absence and emergency pay.

(Ga. L. 1916, p. 158, § 3; Code 1933, § 86-501; Ga. L. 1935, p. 95, § 1; Ga. L. 1951, p. 311, § 9; Ga. L. 1955, p. 10, § 23; Ga. L. 1963, p. 10, § 2; Ga. L. 1967, p. 11, § 1; Ga. L. 1970, p. 299, § 1; Ga. L. 1972, p. 1015, § 902; Ga. L. 2001, p. 26, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

Attempted appointment does not affect State Guard position.

- Attempted appointment to the position of adjutant general, to which the appointee was ineligible for reasons of age, would not have the effect of removing the appointee from the appointee's position in the Georgia State Guard. 1945-47 Op. Att'y Gen. p. 517 (decided under former Code 1933, § 86-501).

RESEARCH REFERENCES

C.J.S.

- 6 C.J.S., Armed Services, § 344.

38-2-151. Adjutant general - Duties; records; seal; effect of seal on documentary evidence.

  1. The adjutant general shall be chief of staff to the Governor and subordinate only to the Governor in matters pertaining to the Department of Defense and the military and naval affairs of the state.
  2. Whenever the Governor and those who would act in succession to him under the Constitution and laws of the state are unable to perform the duties of commander in chief, the adjutant general shall command the militia.
  3. It shall be the duty of the adjutant general:
    1. To direct the planning and employment of the forces of the organized militia in carrying out their state military mission;
    2. To establish unified command of state forces whenever they are jointly engaged; and
    3. To coordinate the military and naval affairs with the emergency management agency of the state.
  4. The adjutant general shall:
    1. Be custodian of all military records and shall keep the same indexed and available for ready reference;
    2. Keep an itemized account of all moneys received and disbursed from all sources;
    3. Make an annual report to the Governor on the condition of the organized militia with a roster of all commissioned officers and such other matters relating to the Military Division, Department of Defense as he shall deem expedient; and
    4. Cause the laws and regulations relating to the militia to be indexed, printed, bound, and distributed to all forces of the organized militia.
  5. The adjutant general shall further perform such duties pertaining to his office as from time to time may be provided by the laws, rules, and regulations of the United States and such as may be designated by the Governor.
  6. The adjutant general shall have a seal of office approved by the Governor, and all copies and papers in the Military Division, Department of Defense which are duly certified and authenticated under the seal shall be evidence in like manner as if the original were produced.

(Ga. L. 1916, p. 158, § 3; Code 1933, § 86-501; Ga. L. 1935, p. 95, § 1; Ga. L. 1951, p. 311, § 9; Ga. L. 1955, p. 10, § 24.)

Cross references.

- Authority of adjutant general to empower service contract security guards employed by Department of Defense to arrest summarily persons violating laws at or near facilities of Georgia Air National Guard and Georgia Army National Guard, § 50-16-15.

JUDICIAL DECISIONS

Negligent acts of adjutant general.

- Trial court erred in denying the state defense agency's motion for summary judgment on the civilian technician's claim that the negligent acts of the state adjutant general while the civilian technician was repairing federal equipment at a federal Air Force base caused the civilian technician's injury as the state adjutant general relationship with the federally-employed civilian technician was clearly military in nature and, thus, the state defense agency was protected by the doctrine of intra-military immunity. Ga. DOD v. Johnson, 262 Ga. App. 475, 585 S.E.2d 907 (2003).

OPINIONS OF THE ATTORNEY GENERAL

Adjutant general is vested with full control and authority over the affairs and employees of the Military Division, Department of Defense of the State of Georgia, and the adjutant general has full authority to enter into an agreement with the United States Department of Defense. 1963-65 Op. Att'y Gen. p. 619.

Adjutant general may issue regulations which are superior to local laws of the state, but only when the regulations pertain to the powers granted to the adjutant general under the terms of former Code 1933, § 86-501. 1954-56 Op. Att'y Gen. p. 558.

Delegation of power or authority.

- Adjutant general cannot delegate discretionary power or authority regarding the signing of state contracts but the adjutant general can implement guidelines regarding routine contracts and then, in writing, delegate to the Director of Strategic Resource Management the ministerial function of signing contracts within the guidelines. 1999 Op. Att'y Gen. No. 99-9.

RESEARCH REFERENCES

C.J.S.

- 6 C.J.S., Armed Services, § 344.

38-2-152. Assistant adjutants general; eligibility; appointment; duties; compensation; tenure.

  1. The Governor shall appoint an assistant adjutant general for army and an assistant adjutant general for air to assist the adjutant general in the discharge and performance of his or her duties. Each of the assistant adjutants general, at the time of appointment, shall be a federally recognized officer with the rank of lieutenant colonel or higher. An officer who has retired or resigned from the Georgia National Guard or any other component of the Army or Air Force shall be eligible for appointment as assistant adjutant general for army or air; provided, however, that the officer shall have served in a federally recognized status in the active Army or Air National Guard or any other component of the Army or Air Force, as appropriate, and attained the rank of lieutenant colonel or higher; and provided, further, that the appointment of the officer shall be within five years after the date of his or her retirement or resignation and prior to his or her attaining age 60. Each of the assistant adjutants general shall have the rank of not less than brigadier general, the specific rank to be determined by the Governor. Each of the officers shall receive the pay and allowances for his or her rank as provided by law for an officer of equivalent rank in the regular armed forces of the United States. In the event of a vacancy in the office of the adjutant general, and until his or her successor is appointed and qualified as provided by law, the assistant adjutant general who is senior in rank shall perform the duties required of the adjutant general in connection with the military division, as provided by law. Assistant adjutants general shall hold no other state office, and they shall serve at the pleasure of the Governor.
  2. The adjutant general may appoint, designate, or detail officers of the National Guard as deputy assistant adjutants general for army and for air who shall perform the military duties assigned by the adjutant general. Deputy assistant adjutants general shall be of field grade or general officer rank, the specific rank to be determined by the adjutant general. Deputy assistant adjutants general shall serve at the pleasure of the adjutant general.

(Ga. L. 1916, p. 158, § 3; Code 1933, § 86-501; Ga. L. 1935, p. 95, § 1; Ga. L. 1951, p. 311, § 9; Ga. L. 1955, p. 10, § 25; Ga. L. 1963, p. 10, § 3; Ga. L. 1970, p. 299, § 2; Ga. L. 1971, p. 84, § 1; Ga. L. 1992, p. 1258, § 2; Ga. L. 2001, p. 26, § 2; Ga. L. 2004, p. 105, § 1; Ga. L. 2012, p. 52, § 1/HB 800.)

The 2012 amendment, effective April 11, 2012, in subsection (a), deleted "with not less than five years of continuous service in the Army or Air National Guard of this state" following "or higher" at the end of the second sentence, and, in the third sentence, twice inserted "or any other component of the Army or Air Force" and deleted "not less than five years" following "shall have served" in the middle.

OPINIONS OF THE ATTORNEY GENERAL

Assistant adjutants general not covered by merit system.

- Legislative intent of this section is that assistant adjutants general should not be covered under the state merit system. 1971 Op. Att'y Gen. No. 71-71.

Positions of assistant adjutant general for army, assistant adjutant general for air, and deputy director for civil defense (now emergency management), being specifically excluded by law from the classified service, are not counted against the five discretionary positions which the adjutant general may designate for inclusion in the unclassified service. 1975 Op. Att'y Gen. No. 75-81.

Assistant adjutant general for air is not required by orders to perform hazardous duty and is not entitled to a salary equivalent to the pay and allowances of a brigadier general who also receives incentive pay. 1972 Op. Att'y Gen. No. 72-10.

RESEARCH REFERENCES

C.J.S.

- 6 C.J.S., Armed Services, § 344.

38-2-153. State property and fiscal officer; appointment; duties; reports; bonds; compensation.

The adjutant general may appoint, designate, or detail, subject to the approval of the Governor, a person as the state property and fiscal officer, who shall, under the authority of the adjutant general, have charge of, issue, and be accountable for all state military property and shall make such property returns and reports of the same as the adjutant general may direct. He or she shall be under bond to the state for such amount as the Governor may deem necessary. The adjutant general shall fix the compensation of the state property and fiscal officer.

(Ga. L. 1916, p. 158, § 3; Code 1933, § 86-502; Ga. L. 1951, p. 311, § 9; Ga. L. 1955, p. 10, § 26; Ga. L. 1996, p. 740, § 1.)

RESEARCH REFERENCES

C.J.S.

- 6 C.J.S., Armed Services, § 344.

PART 4 A PPROPRIATIONS, FINANCE, AND ACQUISITION OF PROPERTY

38-2-170. Military appropriations; military fund created; use of military funds.

The General Assembly shall appropriate from time to time a sufficient sum of money, based on estimates and recommendations made by the adjutant general and approved by the Governor, for the purpose of paying the expenses incident to carrying out this chapter. All money so appropriated by the General Assembly shall continue and be kept in the state treasury as a separate fund to be known as the "military fund." None of the moneys placed in the military fund shall be converted into the general fund of the state treasury, and no part of the military fund shall be used for any purpose except as shall be authorized by law.

(Ga. L. 1916, p. 158, § 3; Code 1933, § 86-901; Ga. L. 1951, p. 311, § 10; Ga. L. 1955, p. 10, § 62.)

OPINIONS OF THE ATTORNEY GENERAL

Military fund to be used for military purposes only.

- Statute clearly provides that all moneys appropriated to the military fund shall be used for military purposes only, and does not provide for the establishment of a canteen service. 1945-47 Op. Att'y Gen. p. 53 (rendered under former Code 1933.

Lapse of appropriations.

- Appropriations of state funds to the Department of Defense which are not spent or contractually committed in writing lapse at the end of the fiscal year notwithstanding the provision for a continuing "military fund" in O.C.G.A. § 38-2-170. 1994 Op. Att'y Gen. No. 94-22.

38-2-171. Appropriations for units of organized militia; apportionment by adjutant general.

Out of the funds appropriated for the military fund the adjutant general, in his discretion, may allocate to the units of the organized militia moneys for rental, maintenance, and utility expense of unit facilities and for the welfare of the members of the units. The expenditure of the funds shall be in accordance with regulations issued pursuant to this chapter.

(Ga. L. 1916, p. 158, § 3; Code 1933, § 86-904; Ga. L. 1951, p. 311, § 21; Ga. L. 1955, p. 10, § 63.)

OPINIONS OF THE ATTORNEY GENERAL

Funds may be allocated only to units of the organized militia and not to an officer-in-charge of such a unit or several units. 1967 Op. Att'y Gen. No. 67-233.

Funds may be allocated to several units jointly.

- Funds may, however, be allocated to several units jointly where the units occupy the same facilities with the same officer-in-charge designated as custodian. 1967 Op. Att'y Gen. No. 67-233.

38-2-172. Transfer of funds in emergency; funds used in event of invasion.

  1. When the available funds are not sufficient for the purpose of paying the expenses incident to carrying out this chapter, the Governor may transfer from any available fund in the state treasury such sum as may be necessary to meet such emergency, and the moneys so transferred shall be repaid to the fund from which transferred when moneys become available for that purpose by legislative appropriation or otherwise.
  2. In the event of invasion of the state by land, sea, or air, the funds referred to in Article III, Section IX, Paragraph VI(b) of the Constitution of this state may be utilized on the executive order of the Governor for defense purposes.

(Ga. L. 1951, p. 311, § 10; Ga. L. 1955, p. 10, § 64; Ga. L. 1983, p. 3, § 59.)

38-2-173. Governor authorized to borrow money.

When there is no state appropriation or funds available for the purpose of paying the expenses incident to carrying out the provisions of this chapter having reference to repelling an invasion, suppressing an insurrection, or defending the state in time of war, as authorized by Article VII, Section IV, Paragraphs I and VI of the Constitution of this state, the Governor may borrow money for such purpose in such sum or sums as may from time to time be required; and any such loans so obtained shall be promptly repaid out of the first funds that become available for such use.

(Ga. L. 1951, p. 311, § 10; Ga. L. 1955, p. 10, § 65; Ga. L. 1983, p. 3, § 59.)

38-2-174. Governor authorized to accept donations for organized militia.

The Governor, in his discretion, may accept donations of money and property, both real and personal, to be used for military purposes by the organized militia under such conditions as the donor may designate.

(Ga. L. 1916, p. 158, § 3; Code 1933, § 86-1410; Ga. L. 1951, p. 311, § 24; Ga. L. 1955, p. 10, § 104.)

38-2-175. Governor authorized to obtain all federal appropriations, property, and equipment.

The Governor may initiate and take such action as he may deem proper to obtain all appropriations, property, and equipment as may be provided by the United States for the use, training, equipping, or benefit of the organized militia.

(Ga. L. 1951, p. 311, § 4; Ga. L. 1955, p. 10, § 66.)

38-2-176. Appropriations of money or property by counties or municipal corporations for local military units.

The governing authorities of the counties and municipal corporations of the state are authorized to make appropriations from the funds of such counties and municipal corporations and to donate property, both real and personal, of the counties and municipal corporations for the support and maintenance of local forces of the organized militia as, in their discretion, they may deem meet and proper. A force of the organized militia shall be deemed to be a local force although its headquarters may be located in a county adjoining the county or adjoining the county in which the municipal corporation may be located, the governing authority of which desires to make any such appropriations, provided that a substantial number of its personnel are residents of such county or municipal corporation.

(Ga. L. 1916, p. 158, § 3; Code 1933, § 86-905; Ga. L. 1951, p. 311, § 21; Ga. L. 1955, p. 10, § 67.)

OPINIONS OF THE ATTORNEY GENERAL

Municipalities may legally donate money to the state for the purpose of constructing or purchasing military armories for use by local military units. 1952-53 Op. Att'y Gen. p. 415.

Counties and municipalities of this state are authorized to make appropriations and to donate property for the support and maintenance of local National Guard organizations throughout the state. 1973 Op. Att'y Gen. No. 73-15.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53 Am. Jur. 2d, Military and Civil Defense, § 34.

38-2-177. Establishment of defense finance and accounting services facility; steps toward establishment; intergovernmental cooperation.

  1. The General Assembly finds and declares that great public benefit shall result from cooperation among the United States, the state, the counties and municipal corporations of the state, and public authorities with respect to the national, state, and local defense.In particular, such benefit will result from competing and contracting for the establishment of a Defense Finance and Accounting Services facility in Georgia pursuant to the Opportunity for Economic Growth program of the United States Department of Defense and the Base Closure and Realignment Commission proceedings of the United States.Such benefits will include enhanced performance of defense functions, increased job opportunities, increased opportunity for job training and creating a skilled work force, enhanced economic activity, and increased governmental revenues. Pursuant to that finding and declaration, it is further declared to be a significant and important public purpose for the state and local governments to enter into such competition and agreements on such terms and conditions as they may determine in accord with the following:
    1. The Department of Defense is authorized to acquire, by purchase, gift, condemnation, or otherwise, construct, establish, operate, maintain, repair, and replace a finance and accounting facility for defense purposes;
    2. In connection therewith, with the approval of the Governor, the Department of Defense may compete and contract for the establishment of a Defense Finance and Accounting Services facility in Georgia pursuant to the Opportunity for Economic Growth program of the United States Department of Defense and the Base Closure and Realignment Commission proceedings of the United States;
    3. In connection therewith, the department may enter into contracts with the United States, not exceeding 50 years in term, by which the state agrees to make services and facilities available to the United States for purposes of the national defense, or by which the United States makes services and facilities available to the state or its authorities for purposes of the state or national defense; and
    4. In connection therewith, any other state agency or instrumentality shall be authorized to participate with the department or separately for the purpose of providing or receiving services or facilities consistent with its public functions.
  2. In consideration of the mutual public purposes and pursuant to intergovernmental contract, the governing authorities of the counties, municipal corporations, and local authorities of the state are authorized to make appropriations from the funds of such counties, municipal corporations, and local authorities and are authorized to lease, lend, sell, grant, or donate services and property, both real and personal, of the counties and municipal corporations to the state and the federal government for purposes of local, state, and national defense and for the use of the organized militia.For such purposes they may exercise the power of eminent domain.Any donation of real property to the state by a county, municipal corporation, or local authority, with a provision in such a gift that the property shall be used for military purposes and should the property not be used for military purposes the same shall revert to the donor, shall be a valid gift; and if the property can be used by the state for military purposes it may be accepted by the Governor with such conditions and reverter, but the Governor may require the conveyance of a full fee and that likewise shall be a valid conveyance.When so accepted it shall be lawful to expend funds appropriated or otherwise authorized, including proceeds of general obligation debt, for the support of the militia to improve the property with an armory or other military facilities.

(Ga. L. 1951, p. 311, § 24; Ga. L. 1955, p. 10, § 68; Ga. L. 1993, p. 1, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 53 Am. Jur. 2d, Military and Civil Defense, § 34.

PART 5 A RMORIES AND OTHER FACILITIES

OPINIONS OF THE ATTORNEY GENERAL

Adjutant general is not bound by the adjutant general's invitation to bid on a state contract, but can accept any bid which the adjutant general considers best for the state. 1954-56 Op. Att'y Gen. p. 633.

38-2-190. Definitions.

As used in this part, the term:

  1. "Armory" means any building, buildings, aircraft hangars, offices, quarters, or other facilities and real property provided for and devoted to the training and housing of the organized militia.
  2. "Maintenance facilities" means shops, centers, and other facilities, including storage facilities located within such maintenance facilities, except minor maintenance facilities located within the armories proper, which are utilized for the purpose of maintaining and repairing federal or state property.
  3. "Range" means all outdoor areas including buildings and other facilities thereon owned, leased, or otherwise operated by the state for training and competition of the organized militia in weapons firing but shall not include small bore ranges installed within armories or other facilities.
  4. "Storage facilities" means all buildings, warehouses, depots, and other facilities utilized wholly for storage of federal or state property but shall not include unit supply facilities located within armories nor storage facilities in maintenance facilities.

(Ga. L. 1955, p. 10, § 69.)

38-2-191. Construction, conversion, expansion, or alteration of armories and other facilities authorized when adjutant general deems necessary.

The adjutant general, whenever he shall deem it necessary, subject to the approval of the Governor and provided funds have been appropriated and provided by the state, or by the United States, or by counties, or by municipalities in whole or jointly is authorized to construct, reconstruct, expand, convert, and alter all such facilities as defined in Code Section 38-2-190 for the use of the organized militia.

(Ga. L. 1951, p. 311, § 25; Ga. L. 1955, p. 10, § 70.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 53 Am. Jur. 2d, Military and Civil Defense, § 34.

38-2-192. Funding, equipping, and maintenance of facilities.

The equipping and maintenance of facilities defined in Code Section 38-2-190 shall be from funds appropriated and provided by the state, the United States, the counties, and municipalities, in whole or jointly, and, in the case of armories, from funds derived from rentals as set forth in Code Section 38-2-195.

(Ga. L. 1955, p. 10, § 71.)

38-2-193. Military division authorized to accept and procure federal funds; adjutant general authorized to utilize funds for projects; recipient of federal funds.

  1. The Military Division, Department of Defense is designated as the agency of the state:
    1. To take such steps as may be necessary to develop programs for the expenditure of federal funds and to procure the allotment of such funds as may be provided by or pursuant to any act of Congress for the construction, demolition, reconstruction, improvement, equipping, furnishing, maintenance, and operation of armories, camps, ranges, bases, or any building, structure, or facility for the organized militia; and
    2. To execute and administer such programs and to cooperate with the federal authorities responsible therefor.
  2. The adjutant general, subject to the approval of the Governor, is authorized and empowered to negotiate for, accept, and approve projects, proposals, contracts, and agreements for the construction, reconstruction, expansion, conversion, purchase, lease, repair, rehabilitation, improvement, equipping, furnishing, maintenance, and operation, in whole or in part with federal funds, of armories, camps, ranges, bases, or any building, structure, or facility for the organized militia.
  3. When federal funds are made available or provided to the state either directly or by way of reimbursement for any moneys expended by the state for the construction, demolition, reconstruction, expansion, conversion, purchase, lease, repair, rehabilitation, improvement, equipping, furnishing, maintenance, and operation of any armory, camp, range, base, building, structure, or facility for the organized militia, the adjutant general is authorized to receive such funds on behalf of the state.

(Ga. L. 1955, p. 10, § 72.)

38-2-194. Control of armories and other facilities; officer in charge.

All armories and other facilities defined in Code Section 38-2-190 owned, leased, or maintained by the state or by the United States for use of the organized militia and all activities conducted therein shall be under the general charge and control of the adjutant general. Unless otherwise designated by the adjutant general, the unit commander shall be the officer in charge of the armory and other facilities occupied by his unit; provided, however, that, where two or more units occupy the same armory or facility, the senior unit commander shall be the officer in charge. The officer in charge shall be directly responsible to the adjutant general for carrying out this part and regulations issued pursuant thereto.

(Ga. L. 1955, p. 10, § 73.)

38-2-195. Use of armories and other facilities.

  1. Armories and other facilities which are owned, leased, and operated by the state will not be used at any time by others when the use will interfere in any way with the functions and training of the organized militia unit or units occupying the same.
  2. The use of armories and other facilities shall be in accordance with regulations issued pursuant to this part.
  3. Armories and other facilities of the organized militia shall not be used for political or religious purposes, except that an armory may be used for the purpose of holding the national or state convention of a political party with the prior approval of the adjutant general.

(Ga. L. 1955, p. 10, § 74.)

Cross references.

- Registration and organization of political parties and bodies generally, § 21-2-110.

OPINIONS OF THE ATTORNEY GENERAL

Use as polling places.

- National Guard armories may be used as polling places in an election, unless the use would interfere in any way with the functions and purposes for which the armory is primarily intended. 1969 Op. Att'y Gen. No. 69-254.

Funds used to pay housekeepers subject to state requirements.

- Funds collected by the Department of Defense as billeting funds or armory rentals pursuant to regulations issued under O.C.G.A. § 38-2-195 are state funds which may be retained by that department. The management of the funds is subject to requirements of the Office of Planning and Budget, the State Auditor, and the State Depository Board. Housekeeping personnel are state employees. As state employees, housekeeping personnel are entitled to the benefits authorized under the State Merit System and other laws upon compliance with the terms of participation. 1993 Op. Att'y Gen. No. 93-4.

ARTICLE 3 PERSONNEL

PART 1 O FFICERS

38-2-210. Appointment and promotion of commissioned officers; filling of vacancies; grounds for removal.

  1. All commissioned officers of the organized militia shall be appointed and promoted by the Governor upon recommendation of the commanding general or the commanding officer of the force in which such officers are to serve, or are serving. In the filling of vacancies, preference shall be given to personnel of the organized militia of the state when they are otherwise qualified.
  2. Commissioned officers of the organized militia may be removed in accordance with the applicable laws of the United States and the provisions of this chapter and the regulations issued thereunder.

(Ga. L. 1916, p. 158, § 3; Code 1933, §§ 86-505, 86-516; Ga. L. 1951, p. 311, § 18; Ga. L. 1955, p. 10, § 40; Ga. L. 1959, p. 114, § 1; Ga. L. 1996, p. 740, § 2.)

OPINIONS OF THE ATTORNEY GENERAL

Adjutant General's authority includes the power to control the activities of the State Defense Force, to prescribe such officers as may be proper, and to plan and provide for training of the State Defense Force in a manner consistent with the law and regulations prescribed by the Governor. If the Governor directs, the adjutant general may also prescribe regulations, but the adjutant general does not have authority to appoint commissioned officers. 1992 Op. Att'y Gen. No. 92-2.

RESEARCH REFERENCES

C.J.S.

- 6 C.J.S., Armed Services, § 344.

38-2-211. Qualifications.

  1. No person shall be appointed or promoted as a commissioned officer of the organized militia unless he shall have passed such examination as to his physical, moral, and professional qualifications as may be prescribed by the laws of the United States and by this chapter and the regulations issued thereunder. No person shall be recognized as a commissioned officer of the organized militia and no appointment as such shall become effective until he shall have taken and subscribed an oath of office.
  2. Any person who has been dismissed or discharged from the organized militia of this or any other state or from the armed forces of the United States or any reserve component thereof under other than honorable conditions and has not been restored to duty shall not be eligible for appointment as a commissioned officer in any force of the organized militia.

(Ga. L. 1916, p. 158, § 3; Code 1933, § 86-504; Ga. L. 1955, p. 10, § 41.)

38-2-212. Assignment and transfer.

Commissioned officers may be assigned, reassigned, transferred, or detailed to and from units within the Army National Guard, to and from units within the Air National Guard, and to and from units within the Georgia Naval Militia as prescribed by the laws of the United States and by this chapter and by the regulations issued thereunder.

(Ga. L. 1916, p. 158, § 3; Code 1933, § 86-605; Ga. L. 1955, p. 10, § 42.)

RESEARCH REFERENCES

C.J.S.

- 6 C.J.S., Armed Services, § 344.

38-2-213. Oath of office; by whom administered.

Every commissioned officer of the organized militia shall take and subscribe the oath of office prescribed for officers of the organized militia by the applicable laws of the United States and regulations issued pursuant to this chapter. The oath shall be taken and subscribed before an officer of the organized militia authorized to administer oaths as provided in this chapter or before a notary public or other officer authorized by the laws of this state to administer oaths.

(Ga. L. 1916, p. 158, § 3; Code 1933, § 86-510; Ga. L. 1951, p. 311, § 18; Ga. L. 1955, p. 10, § 43.)

RESEARCH REFERENCES

C.J.S.

- 6 C.J.S., Armed Services, § 344.

38-2-214. Uniforms and equipment.

Every commissioned officer shall provide himself with such uniforms and articles of equipment as may be prescribed by regulations issued pursuant to this chapter.

(Ga. L. 1916, p. 158, § 3; Code 1933, § 86-1003; Ga. L. 1955, p. 10, § 44.)

38-2-215. Efficiency and medical examining boards - Consideration by; composition and appointment of.

  1. The efficiency, moral character, and general fitness for retention in the organized militia of any commissioned officer may be investigated and determined by an efficiency examining board. The members of an efficiency examining board shall be senior in rank to the officer under investigation unless such senior officers are unavailable.
  2. The physical fitness for further service of any commissioned officer in the organized militia may be investigated and determined by a medical examining board of officers.
  3. Efficiency and medical examining boards shall be appointed by the Governor upon the recommendation of the adjutant general; provided, however, that whenever an examining board is appointed for the purpose of determining the fitness of any officer for continued federal recognition, the board shall be appointed by the commander designated in the applicable laws of the United States and the regulations issued thereunder.

(Ga. L. 1955, p. 10, § 45.)

38-2-216. Efficiency and medical examining boards - Powers; procedure for appearances; discharge; transfer to reserve or retired list.

Efficiency and medical examining boards appointed by the Governor are vested with the powers of courts of inquiry and courts-martial. The boards shall follow the practice and procedure prescribed by applicable laws of the United States and the state and the regulations issued thereunder. Any officer ordered to appear before such a board shall be allowed to appear in person or by counsel, to cross-examine witnesses, and to call witnesses in his behalf. He shall at all stages of the proceeding be allowed full access to records pertinent to his case and be furnished with copies of the same. Failure to appear before any such examining board shall be sufficient ground for a finding by the board that the officer ordered to appear should be discharged. If the findings of the board are unfavorable to an officer and are approved as provided by applicable laws of the United States or by the Governor, the Governor shall relieve the officer from duty and shall give him a discharge in such form as may be appropriate; provided, however, that if the discharge of an officer is recommended solely because of physical inability to perform active service, the officer may be transferred to the state reserve list or the state retired list in accordance with this chapter.

(Ga. L. 1955, p. 10, § 46.)

Cross references.

- Convening of general courts-martial by Governor, § 38-2-390.

Courts of inquiry generally, § 38-2-570.

38-2-217. Resignations; acts constituting resignation; types of discharge after resignation; resignation of officers who are accountable for military funds or property.

  1. A commissioned officer of the organized militia may tender his resignation at any time to the Governor. If the Governor accepts the resignation, the officer shall receive an honorable discharge; but, if the officer tendering his resignation is under arrest or if charges have been preferred against him for the commission of an offense punishable by a court-martial, he may be given a discharge in such form as the Governor may direct.
  2. Enlistment in the regular army, air force, navy, marine corps, or coast guard of the United States shall be deemed a resignation by the person so enlisting of all commissions in the militia held by him.
  3. The acceptance of a commission in the organized militia shall be deemed a resignation by the person accepting the same of any other commission held by him in the militia.
  4. Permanent removal from the state of an officer of the organized militia shall be deemed a resignation.
  5. All officers of the organized militia accountable or responsible for military funds or property who tender their resignations or who are deemed to have resigned shall be transferred immediately to an unassigned list pending discharge from such accountability or responsibility. The transfer shall not relieve the officers of their liability until they are discharged therefrom as provided by the laws of the United States and by this chapter and regulations issued pursuant thereto.

(Ga. L. 1916, p. 158, § 3; Code 1933, § 86-514; Ga. L. 1951, p. 311, § 18; Ga. L. 1955, p. 10, § 47.)

RESEARCH REFERENCES

C.J.S.

- 6 C.J.S., Armed Services, §§ 344, 345.

38-2-218. Absence without leave.

Any commissioned officer of the organized militia who absents himself without leave for three months may be dismissed by the Governor.

(Ga. L. 1955, p. 10, § 48; Ga. L. 1969, p. 228, § 2.)

38-2-219. Warrant officers.

The provisions of this article relating to commissioned officers shall apply to warrant officers and commissioned warrant officers except that warrant officers who have been absent without leave may be discharged as may be prescribed by the applicable laws of the United States and by this chapter and the regulations issued thereunder.

(Ga. L. 1951, p. 311, § 18; Ga. L. 1955, p. 10, § 49.)

RESEARCH REFERENCES

C.J.S.

- 6 C.J.S., Armed Services, § 344.

PART 2 E NLISTED PERSONNEL

38-2-230. Enlistment; qualifications; period of service; transfer; discharge; extensions of enlistments.

  1. The qualifications for enlistment and reenlistment, the period of enlistment, reenlistment, and voluntary extension of enlistment, the period of service, the form of oath to be taken, and the manner and form of transfer and discharge of enlisted personnel of the forces of the organized militia shall be those prescribed by applicable laws of the United States and by this chapter and by regulations issued thereunder.
  2. Any person who has been discharged under other than honorable conditions from the organized militia of this or any other state or from any component of the armed forces of the United States and who has not been restored to duty shall not be eligible for enlistment in any force of the organized militia.
    1. The Governor is authorized to extend the period of any enlistment, reenlistment, voluntary extension of enlistment, and the period of service of enlisted personnel of the organized militia for, but not exceeding the duration of, an emergency declared by him.
    2. Whenever the period of enlistment, reenlistment, voluntary extension of enlistment, and the period of service of enlisted personnel of the reserve components of the armed forces of the United States is extended, the Governor shall extend the period of any enlistment, reenlistment, voluntary extension of enlistment, and the period of service of enlisted personnel in the corresponding force of the organized militia for the same period.

(Ga. L. 1916, p. 158, § 3; Code 1933, §§ 86-602, 86-603, 86-605; Ga. L. 1951, p. 311, § 19; Ga. L. 1955, p. 10, § 50.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 53 Am. Jur. 2d, Military and Civil Defense, § 35.

C.J.S.

- 6 C.J.S., Armed Services, §§ 343, 345.

38-2-231. Contract and oath of enlistment; penalty.

Every person who enlists or reenlists in any force of the organized militia shall sign an enlistment contract and shall take and subscribe such oath or affirmation of enlistment as may be prescribed by the applicable laws of the United States and by regulations issued pursuant to this chapter. The oath shall be taken and subscribed before any officer authorized by Code Section 38-2-213 to administer the oath of office to a commissioned officer. A person making a false oath as to any statement contained in the enlistment contract commits the offense of false swearing.

(Ga. L. 1916, p. 158, § 3; Code 1933, §§ 86-604, 86-9905; Ga. L. 1951, p. 311, § 53; Ga. L. 1955, p. 10, § 51.)

Cross references.

- False swearing generally, § 16-10-71.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53 Am. Jur. 2d, Military and Civil Defense, § 36.

C.J.S.

- 6 C.J.S., Armed Services, § 341.

38-2-232. Noncommissioned officers and petty officers; appointments; appointing officer; termination of appointment.

All noncommissioned officers and petty officers of the organized militia shall be appointed at the discretion of the appointing officer upon the nomination of the officer under whose immediate command they are to serve. The appointment shall be in accordance with regulations of the United States and regulations issued pursuant to this chapter. Appointing officers shall be designated in regulations issued pursuant to this chapter. The appointment of a noncommissioned officer or a petty officer may be terminated as prescribed by regulations issued pursuant to this chapter.

(Ga. L. 1916, p. 158, § 3; Code 1933, § 86-601; Ga. L. 1955, p. 10, § 52.)

RESEARCH REFERENCES

C.J.S.

- 6 C.J.S., Armed Services, §§ 344, 345.

38-2-233. Discharges; conditions; form.

  1. An enlisted person may be discharged from any force of the organized militia prior to the expiration of his term of enlistment under such conditions as may be prescribed by applicable laws of the United States and by this chapter and regulations issued pursuant thereto.
  2. An enlisted person discharged from a force of the organized militia shall receive a discharge in writing in such form and of such type or classification as may be prescribed by applicable laws and regulations of the United States and by regulations issued pursuant to this chapter.

(Ga. L. 1916, p. 158, § 3; Code 1933, § 86-607; Ga. L. 1951, p. 311, § 19; Ga. L. 1955, p. 10, § 53.)

RESEARCH REFERENCES

C.J.S.

- 6 C.J.S., Armed Services, § 345.

ALR.

- What circumstances constitute laches barring federal judicial review of allegedly wrongful discharge from military service, 100 A.L.R. Fed. 821.

38-2-234. Absent without leave; dropping from rolls.

When an enlisted person of the organized militia absents himself without leave for three months and there is reason to believe that he does not intend to return, he may be dropped from the rolls under such regulations as may be prescribed pursuant to this chapter.

(Ga. L. 1955, p. 10, § 54.)

PART 3 P AY, PENSIONS, AND ALLOWANCES

RESEARCH REFERENCES

ALR.

- Constitutionality of statute providing for bounty or pensions for soldiers, 143 A.L.R. 1530.

38-2-250. Pay while on active service; special duty; travel expenses; minimum base pay.

  1. Each member of the militia ordered into the active service of the state pursuant to Code Sections 38-2-6 and 38-2-72 or Code Section 45-12-31 or 45-12-34, shall receive for each day of such duty the same pay and allowances received by members of the appropriate force of the armed forces of the United States of corresponding grade, rating, and length of service.
  2. Pay and allowances for each day of special duty and state active duty provided for in subsections (b) and (c) of Code Section 38-2-25 shall be the same as the pay and allowances prescribed for members of the appropriate force of the armed forces of the United States of corresponding grade, rating, and length of service.
  3. In addition to the pay and allowances provided for members of the militia under subsections (a) and (b) of this Code section, such members shall also receive necessary travel expenses where authorized.
  4. The minimum base pay provided for members of the militia under subsections (a) and (b) of this Code section shall be $30.00 for each day of duty.
  5. Nothing in this Code section shall be construed as to apply when the National Guard is called into active service pursuant to Title 32 of the United States Code.

(Ga. L. 1916, p. 158, § 3; Code 1933, § 86-903; Ga. L. 1951, p. 311, § 21; Ga. L. 1955, p. 10, § 75; Ga. L. 1964, p. 684, § 1; Ga. L. 1969, p. 228, § 3; Ga. L. 1971, p. 322, § 1; Ga. L. 1979, p. 886, § 1; Ga. L. 2004, p. 105, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 53 Am. Jur. 2d, Military and Civil Defense, § 38.

C.J.S.

- 6 C.J.S., Armed Services, § 346.

38-2-251. Pay, care, etc., when injured or disabled in service; pensions; medical examining boards; rehearings.

Reserved. Repealed by Ga. L. 1981, p. 1585, § 5, effective July 1, 1981.

Editor's notes.

- Ga. L. 2012, p. 775, § 38(1)/HB 942, reserved the designation of this Code section, effective May 1, 2012.

38-2-252. Uniform allowance for officers.

Whenever the military fund will permit, the Governor, in his discretion, may prescribe an allowance to officers to cover the expense of their uniforms, arms, and equipment.

(Ga. L. 1916, p. 158, § 3; Code 1933, § 86-1002; Ga. L. 1951, p. 311, § 21; Ga. L. 1955, p. 10, § 77.)

PART 4 R IGHTS, PRIVILEGES, AND PROHIBITIONS

38-2-270. Relief from civil or criminal liability; immunity not exclusive security for attorney's fees; defense by Attorney General authorized.

  1. Members and commanders of the militia who are performing duty pursuant to this chapter shall not be liable, civilly or criminally, for any acts done by them in the performance of their duty.
  2. When an action or proceeding of any nature is commenced in any court by any person against any member of the militia for any act done by him in his official capacity in the discharge of any duty under this chapter or an alleged omission by him to do an act which it was his duty to perform or against any person acting under the authority or order of any such member or by virtue of any warrant issued by him pursuant to law, the defendant may require the person instituting or prosecuting the action or proceeding to give security, in such amount as shall be determined by the judge of the court in which the action is pending, for the payment of attorney fees that may be awarded to the defendant therein. In default of giving such security the action or proceeding shall be dismissed. Such a defendant in whose favor a final judgment is rendered shall recover reasonable attorney's fees from the person instituting or prosecuting the action or proceeding. The immunity provided in this Code section shall be in addition to that provided by other provisions of law and this Code section shall not be construed to limit or qualify any other immunity provided to members or commanders of the militia by any other provision of law.
  3. In addition to the protections of subsections (a) and (b) of this Code section, the Governor is authorized to direct the Attorney General to defend any civil or criminal action brought against any member of the organized militia for any act done by him in the performance of his duty while in the active service of the state.

(Ga. L. 1955, p. 10, § 78; Ga. L. 1969, p. 228, § 4; Ga. L. 1980, p. 824, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

As to immunity from liability of State Defense Force members when not on duty, there is no such immunity under Official Code of Georgia Title 38. O.C.G.A. § 38-2-270 is limited to acts and omissions by militia members in the performance of their duty. 1992 Op. Att'y Gen. No. 92-2.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, §§ 249 et seq., 259.

Entitlement to a Stay or Default Judgment Relief Under the Soldiers' and Sailors' Civil Relief Act, 35 POF3d 323.

C.J.S.

- 6 C.J.S., Armed Services, § 350.

ALR.

- Liability for injury or damages resulting from traffic accident on highway involving vehicle operated in military service, 133 A.L.R. 1298; 147 A.L.R. 1431.

Civil and criminal liability of soldiers, sailors, and militiamen, 135 A.L.R. 10; 147 A.L.R. 1429; 151 A.L.R. 1463; 153 A.L.R. 1432; 154 A.L.R. 1457; 158 A.L.R. 1462.

Exemption of member of armed forces from service of civil process, 137 A.L.R. 1372; 149 A.L.R. 1455; 150 A.L.R. 1419; 151 A.L.R. 1454; 153 A.L.R. 1418; 153 A.L.R. 1419; 156 A.L.R. 1449; 157 A.L.R. 1449; 158 A.L.R. 1450.

Soldiers' and Sailors' Civil Relief Acts, 148 A.L.R. 1395, 149 A.L.R. 1457, 149 A.L.R. 1463, 150 A.L.R. 1420, 150 A.L.R. 1428, 151 A.L.R. 1456, 151 A.L.R. 1460, 152 A.L.R. 1452, 152 A.L.R. 1457, 153 A.L.R. 1422, 153 A.L.R. 1429, 154 A.L.R. 1448, 154 A.L.R. 1455, 155 A.L.R. 1452, 155 A.L.R. 1456, 156 A.L.R. 1450, 156 A.L.R. 1455, 157 A.L.R. 1450, 157 A.L.R. 1454, 158 A.L.R. 1450; 149 A.L.R. 1463; 150 A.L.R. 1428; 151 A.L.R. 1460; 152 A.L.R. 1457; 153 A.L.R. 1429; 154 A.L.R. 1455; 155 A.L.R. 1456; 156 A.L.R. 1455; 157 A.L.R. 1454; 158 A.L.R. 1456, 35 A.L.R. Fed. 649; 35 A.L.R. Fed. 649.

Service of process on person in military service by serving person at civilian abode or residence, or leaving copy there, 46 A.L.R.2d 1239.

Validity of statute allowing attorney's fee to successful claimant but not to defendant, or vice versa, 73 A.L.R.3d 515.

38-2-271. Change of venue for persons indicted or subjected to civil action for performance of military duty.

Any civil officer, officer, or member of the militia or any person lawfully aiding him in the performance of any military duty required under this chapter, if subjected to a criminal charge or civil action for any crime or trespass or for injury to person or property which occurred while endeavoring to perform such duty, shall have the right, and it is made the duty of the court in which the indictment, accusation, or action is pending upon the application of any person thus defending, to transfer the trial of the indictment, accusation, or action to some county other than that in which the indictment or accusation was found or the injury done. The transfer shall be made to any county that may be agreed upon by the prosecuting attorney and the defendant or his counsel in case of a criminal charge or by the parties and their counsel in case of a civil action. If a county is not thus agreed upon, the judge shall select a county as in his judgment will afford a fair and impartial jury to try the case and have it transferred accordingly.

(Ga. L. 1916, p. 158, § 3; Code 1933, § 86-1404; Ga. L. 1951, p. 311, § 24; Ga. L. 1955, p. 10, § 79; Ga. L. 1982, p. 3, § 38.)

Cross references.

- Change of venue generally, Ga. Const., 1983, Art. VI, Sec. II, Para. VII.

Change of venue in civil actions, § 9-10-50 et seq.

Change of venue in criminal actions, § 17-7-150.

RESEARCH REFERENCES

C.J.S.

- 6 C.J.S., Armed Services, § 350.

38-2-272. Exemption from arrest on civil process; uniform and equipment exempt from levy and sale.

No person belonging to the organized militia of the state shall be arrested on any civil process while going to, remaining at, or returning from any place at which he may be required to attend for military duty. No part of the uniform or equipment of any officer or enlisted man of the organized militia shall be subject to levy and sale for debts.

(Ga. L. 1916, p. 158, § 3; Code 1933, § 86-702; Ga. L. 1951, p. 311, § 24; Ga. L. 1955, p. 10, § 80.)

Cross references.

- Provisions regarding privilege from arrest of active duty military personnel, § 17-4-2.

JUDICIAL DECISIONS

Legislative purpose.

- Legislative purpose of this immunity statute is to prevent civil interference with the military on active duty in the performance of duty. This purpose will be served only if the immunity is asserted at the earliest opportunity. Sanders v. City of Columbus, 140 Ga. App. 441, 231 S.E.2d 473 (1976).

Legislative purpose is defeated if the militiaman allows oneself to be deterred from the performance of the militia member's duty and then raises the privilege for the sole purpose of avoiding the criminal sanctions which the militia member faces. Sanders v. City of Columbus, 140 Ga. App. 441, 231 S.E.2d 473 (1976).

Limitation on police power to detain.

- Statute appears to be a limit upon the police power to momentarily detain. Sanders v. City of Columbus, 140 Ga. App. 441, 231 S.E.2d 473 (1976).

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, §§ 254, 259.

C.J.S.

- 6 C.J.S., Armed Services, § 350.

ALR.

- Exemption of member of armed forces from service of civil process, 137 A.L.R. 1372; 149 A.L.R. 1455; 150 A.L.R. 1419; 151 A.L.R. 1454; 153 A.L.R. 1418; 153 A.L.R. 1419; 156 A.L.R. 1449; 157 A.L.R. 1449; 158 A.L.R. 1450.

Service of process on person in military service by serving person at civilian abode or residence, or leaving copy there, 46 A.L.R.2d 1239.

38-2-273. Free passage through tollgates, tunnels, toll bridges, and ferries while under orders.

Any person belonging to the organized militia shall, together with the conveyance and property of the state or of the United States in his charge, be allowed to pass free through all tollgates and tunnels and over all toll bridges and ferries if he is in uniform and presents an order for duty or certificate of an order for duty.

(Ga. L. 1955, p. 10, § 81.)

38-2-274. Unlawful conversion of military property; penalty.

  1. It shall be unlawful for any person to secrete, sell, dispose of, offer for sale, purchase, retain after demand by a commissioned officer of the organized militia, or in any manner pawn or pledge any arms, uniforms, equipment, or other military property issued under this chapter.
  2. Any person violating subsection (a) of this Code section shall be guilty of a misdemeanor.
  3. No judge, district attorney, solicitor-general, sheriff, court clerk, or other peace officer shall require the payment of any fees, court costs, or charges of any nature for any warrant obtained by the prosecutor for the unlawful conversion of military property.

(Ga. L. 1916, p. 158, § 3; Code 1933, §§ 86-1105, 86-9904; Ga. L. 1951, p. 311, § 52; Ga. L. 1955, p. 10, §§ 82, 107; Ga. L. 1980, p. 589, § 1; Ga. L. 1996, p. 748, § 19.)

Cross references.

- Theft by conversion generally, § 16-8-4.

Editor's notes.

- Ga. L. 1996, p. 748, § 27, not codified by the General Assembly, provides: "Notwithstanding any other provision of law, an Act approved February 11, 1854 (Ga. L. 1854, p. 281), which abolished the office of solicitor of the City Court of Savannah, now the State Court of Chatham County, and transferred responsibility for the prosecution of criminal cases in said court to the solicitor general (now the district attorney) for the Eastern Judicial Circuit is confirmed. It shall be the duty of said district attorney to prosecute all criminal actions in said state court until otherwise specifically provided by law."

Ga. L. 1996, p. 748, § 28, not codified by the General Assembly, provides: "The provisions of this Act shall not affect the powers, duties, or responsibilities of the district attorney as successor to the office of solicitor general under the constitution, statutes, and common law of this state as provided by Code Section 15-18-1."

Ga. L. 1996, p. 748, § 29, not codified by the General Assembly, provides: "Except as otherwise authorized in this Act, on and after July 1, 1996, any reference in general law or in any local Act to the solicitor of a state court shall mean and shall be deemed to mean the solicitor-general of such state court."

Ga. L. 1996, p. 748, § 30, not codified by the General Assembly, provides: "The provisions of paragraph (3) of Code Section 15-18-62, relating to the qualifications for the office of solicitor-general of a state court, shall apply to any person elected or appointed to such office after July 1, 1996. Any person holding such office on July 1, 1996, may continue to hold such office for the remainder of the term to which such person was elected or appointed notwithstanding the fact that such person has not been a member of the State Bar of Georgia for three years if such person is otherwise qualified to hold the office of solicitor-general."

RESEARCH REFERENCES

ALR.

- Nature of property or rights other than tangible chattels which may be subject of conversion, 44 A.L.R.2d 927.

38-2-275. Unlawful wearing of uniforms and devices indicating rank; penalty.

  1. It shall be unlawful for any person except members of components of the armed forces of the United States, members of the organized militia of this or any other state, members of associations wholly composed of persons honorably discharged from the armed forces of the United States, and members of associations wholly composed of children of veterans of any war of the United States to wear any uniform or any device, strap, knot, or insignia of any design or character used as a designation of grade, rank, or office such as are by law or by regulation, duly promulgated, prescribed for the use of the organized militia or similar thereto, provided that this Code section shall not apply to cadets of military schools, the Boy Scouts of America, or to persons wearing on the stage any such uniform at theatrical or like performances.
  2. Any person violating subsection (a) of this Code section shall be guilty of a misdemeanor.

(Ga. L. 1916, p. 158, § 3; Code 1933, § 86-9902; Ga. L. 1951, p. 311, § 50; Ga. L. 1955, p. 10, §§ 82, 108.)

Cross references.

- Impersonation of public officers or employees generally, § 16-10-23.

RESEARCH REFERENCES

ALR.

- Nature of property or rights other than tangible chattels which may be subject of conversion, 44 A.L.R.2d 927.

38-2-276. Exemptions from jury duty and street tax.

Officers and enlisted personnel of the organized militia shall be exempt from street tax and, while serving on ordered active duty, from jury duty, any local or special laws to the contrary notwithstanding. The commanding officer of each or any force of the organized militia shall furnish each member of his command applying for the same such certificate of membership as may be prescribed by the adjutant general, signed by the commanding officer, which certificate shall be accepted by any court as proof of exemption as provided by this Code section. The certificate shall be good only for 30 days after which it bears date.

(Ga. L. 1916, p. 158, § 3; Code 1933, § 86-701; Ga. L. 1951, p. 311, § 24; Ga. L. 1955, p. 10, § 83.)

Cross references.

- Exemptions from jury duty generally, § 15-12-1.1.

Authority to levy and collect street tax, § 48-13-3.

OPINIONS OF THE ATTORNEY GENERAL

Section repealed in part.

- Former Code 1933, § 86-701 (see O.C.G.A. § 38-2-276) was in conflict with former Code 1933, § 59-112 (see O.C.G.A. § 15-12-1 (now O.C.G.A. § 15-12-1.1)) and was therefore repealed insofar as it purported to grant specific exemptions from jury duty to members of the organized militia. 1967 Op. Att'y Gen. No. 67-296.

38-2-277. Unauthorized military bodies prohibited; exceptions; support by counties or cities prohibited; penalty for membership.

  1. No body of men other than the organized militia, components of the armed forces of the United States, and bodies of the police and state constabulary and such other organizations as may be formed under this chapter shall associate themselves together as a military unit or parade or demonstrate in public with firearms.
  2. Associations wholly comprised of military personnel honorably discharged from the service of the United States and benevolent and secret organizations may parade in public with swords. Students in educational institutions where military science is a prescribed part of the course of instruction may drill or parade with firearms in public under the supervision of their instructors. This Code section shall not be construed to prevent parades in public with firearms by authorized organizations of the organized militia of any other state.
  3. No political subdivision of this state shall raise or appropriate any money toward arming, equipping, uniforming, or in any other way supporting, sustaining, or providing drill rooms or armories for any such unauthorized organizations.
  4. Any person who actively participates in an unauthorized military organization or who parades with any unauthorized body of men as set forth in subsection (a) of this Code section shall be guilty of a misdemeanor.

(Ga. L. 1916, p. 158, § 2; Code 1933, § 86-9901; Ga. L. 1951, p. 311, § 49; Ga. L. 1955, p. 10, §§ 84, 109.)

38-2-278. Devises, bequests, and conveyances to military units as societies; officers as trustees; effect of disbandment of unit.

Every unit of the organized militia is and shall be deemed to be a society within the meaning of Code Section 14-5-49, and Code Sections 14-5-46 through 14-5-48 shall apply to such society; provided, however, the commissioned officer or officers of the unit shall constitute the trustee or trustees of such society; and provided, further, should any unit have assigned more than three commissioned officers, the senior three shall constitute the trustees of the society. The name or names of the trustee or trustees shall be certified under the hand of the commanding officer of the unit and the certificate shall be recorded in the office of the clerk of the superior court of the county wherein lies any property held in trust by the trustee or trustees. Any vacancy which may happen in the trust shall be filled by the officer appointed to fill the vacancy in the unit. When any such vacancy shall be filled, the same shall be certified under the hand of the commanding officer of the unit, which certificate shall state the name of the officer to fill the vacancy and the name of the officer whom he succeeds unless the officer fills an original vacancy in the unit; and the certificate shall be recorded in the office of the clerk of the superior court of the county wherein lies property held in trust by the trustees. Any such society referred to in this Code section may take and hold by devise or bequest the title to real and personal property for its uses and purposes as a military organization in addition to its right and power to take the same by deed of conveyance and, subject to the uses and purposes contained in the deed of conveyance or devise or bequest, may mortgage, sell, lease, or otherwise dispose of the same. Should any such unit be deactivated, disbanded, moved from the locality where it acquired the title to the property, called or ordered into the active service of the United States, or by orders of competent authority cease to function as a unit of the organized militia, the title to any such property held by the unit shall vest in trust in the adjutant general, or other officer nearest corresponding to the adjutant general should that office not be in existence, to be conveyed by him to the trustees of some other unit of the organized militia nearest like the predecessor unit, as determined by him, in trust for military purposes.

(Ga. L. 1955, p. 10, § 85; Ga. L. 1982, p. 3, § 38.)

38-2-279. Rights of public officers and employees absent on military duty as members of organized militia or reserve forces.

  1. Definitions. As used in this Code section, the term:
    1. "Ordered military duty" means any military duty performed in the service of the state or of the United States including but not limited to attendance at any service school or schools conducted by the armed forces of the United States by a public officer or employee as a voluntary member of the National Guard or of any reserve force or reserve component of the armed forces of the United States pursuant to orders issued by competent state and federal authority.
    2. "Public officer or employee" means every person, by whatever title, description, or designation known, who receives any pay, salary, or compensation of any kind from the state, a county, municipal corporation, or any other political subdivision or who is in any department of the state, but shall not include persons employed by the state, a county, municipal corporation, or any other political subdivision on a temporary basis.
  2. Every public officer or employee shall be entitled to absent himself or herself and shall be deemed to have a leave of absence from duties or service as a public officer or employee while engaged in the performance of ordered military duty and while going to and returning from such duty. Notwithstanding Code Section 45-5-1 or any other provision of law, a public office shall not be considered vacated or abandoned by a public officer while on ordered military duty.
  3. Leave of absence while attending service schools. Every public officer or employee who is or becomes a voluntary member of any force of the organized militia or of any reserve force or reserve component of the armed forces of the United States shall be entitled to absent himself or herself and shall be deemed to have a leave of absence from duties or service as a public officer or employee while in attendance as a member of such force or reserve component at any service school or schools conducted by the armed forces of the United States for a period or periods up to and including six months and while going to and returning from the school or schools, notwithstanding that orders for such attendance are or may be issued with the consent of the public officer or employee. However, no public officer or employee shall be entitled to absent himself or herself in excess of a total of six months during any four-year period.
  4. Employment rights. Time during which a public officer or employee is absent pursuant to subsections (b) and (c) of this Code section shall not constitute an interruption of continuous employment and, notwithstanding any general, special, or local law or any city charter, no such officer or employee shall be subjected directly or indirectly to any loss or diminution of time, service, increment, vacation, holiday privileges, or any other right or privilege by reason of such absence or be prejudiced with reference to continuance in office or employment, reappointment to office, reemployment, reinstatement, transfer, or promotion by reason of such absence.
  5. Every public officer or employee shall be paid his or her salary or other compensation as such public officer or employee for any and all periods of absence while engaged in the performance of ordered military duty and while going to and returning from such duty, not exceeding a total of 18 days in any one federal fiscal year. In the event the Governor declares an emergency and orders any public officer or employee to ordered military duty as a member of the National Guard, any such officer or employee, while performing such duty, shall be paid his or her salary or other compensation as a public officer or employee for a period not exceeding 30 days in any one federal fiscal year.
  6. Rights and contributions under retirement systems.
    1. The amount of required contributions to any pension or retirement system of which a public officer or employee, absent while engaged in the performance of ordered military duty, is a member shall be deducted from the salary or other compensation paid to such public officer or employee as a public officer or employee as provided in this Code section. If the required contributions exceed the amount of such salary or other compensation to which a public officer or employee is entitled while engaged in the performance of military duty, the amount of the salary or other compensation shall be applied upon the required contributions; and the public officer or employee shall have the right to pay to the pension or retirement system the amount by which the contributions exceed the salary or other compensation. The public officer or employee shall also have the right to pay to the system, for any period of such absence during which he or she shall receive no salary or other compensation as a public officer or employee, the amount that he or she would have contributed to the system if he or she had been present and continuously engaged in the performance of the duties of his or her position during such period.
    2. Payments made pursuant to paragraph (1) of this subsection, other than those deducted from his or her salary or other compensation as an officer or employee, may be paid from time to time at any time while engaged in ordered military duty or within five years after the date of termination of the ordered military duty or, in the event of the death of the public officer or employee while engaged in ordered military duty, the payments or any part thereof may be made by the named beneficiary or the legal representative of the public officer's or employee's estate within one year following proof of such death.
    3. To the extent that contributions made pursuant to paragraphs (1) and (2) of this subsection are paid, the period of absence while engaged in the performance of ordered military duty shall be counted in determining the length of total service under the pension or retirement system.
    4. While engaged in the performance of ordered military duty, any such public officer or employee or his or her beneficiary, as the case may be, shall be entitled to all the benefits of the pension or retirement system of which such public officer or employee is a member, except accidental disability retirement and accidental death benefit.
  7. Notwithstanding the provisions of Chapter 14 of Title 50, an agency, as defined by subsection (a) of Code Section 50-14-1, shall be authorized to conduct meetings by telecommunications conference in the event that one or more of the agency's members is on ordered military duty at the time of such meeting, provided that any such meeting is conducted in compliance with such chapter. The members of the agency, including those on ordered military duty, shall be authorized to participate and make decisions during such a telecommunications conference.
  8. Exception as to draftees, etc. This Code section shall not apply to:
    1. Any public officer or employee who was or is involuntarily transferred, assigned, drafted, or inducted to or into any of the forces of the organized militia or any of the reserve forces or reserve components of the armed forces of the United States; or
    2. Any public officer or employee who was or is inducted into the armed forces of the United States, but not as a member of any force of the organized militia or of any reserve force or reserve component of the armed forces of the United States.

(e.1) (1)On and after July 1, 2002, every public officer or employee may be paid by the government employer the difference between his or her government salary and his or her military salary for any or all periods of absence while engaged in the performance of ordered military duty and while going to and returning from such duty, after expiration of the payment period provided for in subsection (e) of this Code section.

To the extent that funds are appropriated or otherwise made available to the Department of Community Affairs for such purpose, the department may provide grants to counties, municipal corporations, and other political subdivisions to reimburse them for their costs incurred under paragraph (1) of this subsection. The department shall provide by rule for the administration of such grant program; and such rules shall provide for pro rata distribution in the event that the funds available are insufficient to reimburse all such costs.

(Ga. L. 1955, p. 10, § 86; Ga. L. 1959, p. 114, § 7; Ga. L. 1979, p. 623, § 1; Ga. L. 1987, p. 1299, § 1; Ga. L. 1997, p. 1538, § 1; Ga. L. 1998, p. 128, § 38; Ga. L. 2002, p. 1152, §§ 1, 2; Ga. L. 2002, p. 1159, § 1; Ga. L. 2002, p. 1160, §§ 2, 3.)

Cross references.

- Qualifying in absentia for magistrates serving on active duty, § 15-10-20.1.

Effect of service in armed forces of United States during World War II on retirement benefits under county and municipal retirement systems, § 47-1-6.

Code Commission notes.

- The amendment of this Code section by Ga. L. 2002, p. 1159, § 1, irreconcilably conflicted with and was treated as superseded by Ga. L. 2002, p. 1160, § 3. See County of Butts v. Strahan, 151 Ga. 417 (1921).

Law reviews.

- For article, "Protecting America's Reservists, Application of State and Federal Law to Reservists' Claims of Unfair Labor Practices," see 7 Ga. St. B.J. 10 (2002).

JUDICIAL DECISIONS

State employee's claim against the state was barred by sovereign immunity.

- State employee allegedly terminated for military service could not recover against the state under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. § 4311 et seq., and O.C.G.A. § 38-2-279(e). The employee's claim under USERRA was barred by the Eleventh Amendment, and the claim under § 38-2-279 was barred by sovereign immunity under Ga. Const. 1983, Art. I, Sec. II, Par. IX(e). Anstadt v. Bd. of Regents of the Univ. Sys. of Ga., 303 Ga. App. 483, 693 S.E.2d 868 (2010), cert. denied, No. S10C1291, 2010 Ga. LEXIS 713 (Ga. 2010).

OPINIONS OF THE ATTORNEY GENERAL

Persons covered by statute.

- Duly elected county superintendent of schools is a public officer within the terminology and definitions contained in statute. 1960-61 Op. Att'y Gen. p. 131.

Service by policemen and firemen in the United States armed forces reserves during the annual two weeks of active duty would come within the definition of "ordered military duty". 1968 Op. Att'y Gen. No. 68-88.

Working test employee is eligible for the benefits provided by statute. 1969 Op. Att'y Gen. No. 69-303.

Persons not covered.

- As members of the Civil Air Patrol must consent to being ordered to military duty, the members do not come within the terms of this section which require that the members be ordered "without the consent of such public officer or employee." 1960-61 Op. Att'y Gen. p. 449 (see O.C.G.A. § 38-2-279).

Absence due to service with the federal Public Health Reserve Corps should not be considered as military leave (see O.C.G.A. § 38-2-279). 1965-66 Op. Att'y Gen. No. 66-138.

Monthly weekend drill within definition of "ordered military duty."

- One-half day weekend drill attended once a month after basic training comes within the definition of "ordered military duty," and the said one-half day's military leave may be accumulated up to the limit specified in subsection (e), and would be computed and allowed in connection with any other ordered military duty taken by the employee, not to exceed that limitation. 1960-61 Op. Att'y Gen. p. 450 (rendered under Ga. L. 1955, p. 10, prior to revision by Ga. L. 1979, p. 623, § 1).

Compensation for "ordered military duty."

- Under O.C.G.A. § 38-2-279, a public officer or employee may not be paid for more than 30 days of "ordered military duty" in a calendar year, but the appointing authority has the discretion to allow such an employee to utilize accumulated annual leave for any ordered military duty in excess of 30 days. 1986 Op. Att'y Gen. No. 86-37.

Computation of days paid for ordered military duty.

- When the ordered military duty of an employee covered a period of the last 25 days of one year and the first five days in the next year, the employee would be paid for 25 days within the first year and five days in the second year, and the employee would have 25 days remaining in the second year for which the employee could be paid. 1960-61 Op. Att'y Gen. p. 450 (rendered under Ga. L. 1955, p. 10, prior to revision by Ga. L. 1979, p. 623, § 1).

Public officer entitled to leave of absence.

- Public officer is entitled to absent oneself and have a leave of absence from performance of the officer's duties as such public officer while away and engaged in the performance of "ordered military duty," and the officer need not therefore resign such position. 1960-61 Op. Att'y Gen. p. 131.

RESEARCH REFERENCES

ALR.

- Reemployment or reinstatement of public officer or employee as restoration of original status as regards incidental rights privileges, 89 A.L.R. 684.

Constitutionality, construction, and application of statutes concerning status and rights, as regards governmental bodies, or public officers or employees in civil service, while performing military or naval duty, 134 A.L.R. 919.

Induction or voluntary enlistment in military service as creating a vacancy in, or as ground for removal from, public office or employment, 147 A.L.R. 1427; 148 A.L.R. 1400; 150 A.L.R. 1447; 151 A.L.R. 1462; 152 A.L.R. 1459; 154 A.L.R. 1456; 156 A.L.R. 1457; 157 A.L.R. 1456.

Reemployment of discharged servicemen, 167 A.L.R. 124; 29 A.L.R.2d 1279; 9 A.L.R. Fed. 225.

Applicability to fringe benefits of Vietnam Era Veterans' Readjustment Assistance Act provision establishing veterans' reemployment rights (38 USCS sec. 2021), 83 A.L.R. Fed. 908.

38-2-280. Reemployment in private industry; various types of absences; injunction to compel; Attorney General's aid.

  1. In the case of any person who has left or leaves a position, other than a temporary position, in the employ of any employer in order to perform military service and who:
    1. Received a certificate of completion of military service duly executed by an officer of the applicable force of the armed forces of the United States or by an officer of the applicable force of the organized militia;
    2. Is still qualified to perform the duties of the position; and
    3. Makes application for reemployment within 90 days after he or she is relieved from such service, if the position was in the employ of a private employer,

      the employer shall restore the person to the position or to a position of like seniority, status, and pay unless the employer's circumstances have so changed as to make it impossible or unreasonable to do so.

  2. The benefits, rights, and privileges granted to persons in the military service by this Code section shall be extended to and be applicable to any person who, in order to participate in assemblies or annual training pursuant to Code Section 38-2-25 or in order to attend service schools conducted by the armed forces of the United States for a period or periods up to and including six months, temporarily leaves or has left his or her position, other than a temporary position, in the employ of any employer and who, being qualified to perform the duties of the position, makes application for reemployment within ten days after completion of the temporary period of service; provided, however, that no such person shall be entitled to the benefits, rights, and privileges for the attendance at any service school or schools exceeding a total of six months during any four-year period.
  3. The benefits, rights, and privileges granted to persons in the military service by this Code section shall be extended to and be applicable to any person who is or becomes a member of the organized militia or of a reserve component of the armed forces of the United States and who because of such membership is discharged by his or her employer or whose employment is suspended by his or her employer because of such membership and who, being qualified to perform the duties of the position, makes application for reemployment or termination of the period of his or her suspension within ten days after such discharge or suspension. In the event that the member of the organized militia or reserve component is serving on military duty at the time of receipt of notice of the discharge or suspension the aforesaid ten-day period within which application must be made shall not commence to run until the day next following the date of termination of such military duty.
  4. The benefits, rights, and privileges granted to persons in the military service by this Code section shall be extended to and be applicable to any person who is a member of the Georgia National Guard and who is called into active state service by the commander-in-chief of such force for a purpose identified in subsection (a) or (b) of Code Section 38-2-6 or Code Section 38-2-6.1 or who has been called to state sponsored active duty as part of the National Guard of another state by that state's Governor, and who because of such active state service is discharged by his or her employer or whose employment is suspended by his or her employer because of such active state service and who, being qualified to perform the duties of the position, makes application for reemployment or termination of the period of his or her suspension within ten days after such discharge or suspension. In the event that the member of the Georgia National Guard or a member of any other reserve component of the armed forces of the United States is serving in active state service at the time of receipt of notice of the discharge or suspension the aforesaid ten-day period within which application must be made shall not commence to run until the day next following the date of termination of such active state service.
  5. Any person who is restored to a position in accordance with this Code section shall be considered as having been on furlough, on leave of absence during his or her period of military service, performing temporary service under subsection (b), or discharged or suspended under subsection (c) or (d) of this Code section, shall be restored without loss of seniority, shall be entitled to participate in insurance or other benefits offered by the employer pursuant to established rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time the person entered the military service or commenced the temporary service or was so discharged or suspended, and shall not be discharged from the position without cause within one year after the restoration.
  6. If any private employer fails or refuses to comply with this Code section, the superior court of the county in which the private employer resides shall have the power, upon petition by the person entitled to the benefits of this Code section, to require specifically the employer, by injunction, mandatory or otherwise, to comply with this Code section, and may, as an incident thereto, compensate the person for any loss of wages or benefits suffered by reason of the employer's unlawful action. The court shall order a speedy hearing in any such case and may specially set it on the calendar. Any person claiming to be entitled to the benefits of this Code section may appear by his or her own counsel or, upon application to the Attorney General of the state, may request that the Attorney General appear and act on his or her behalf. If the Attorney General is reasonably satisfied that the person so applying is entitled to such benefits, he or she shall appear and act as attorney for the person in the amicable adjustment of the claim or in the filing of any petition and the prosecution thereof. In the hearing and determination of petitions under this Code section no fees or court costs shall be assessed against a person so applying for such benefits.

(Ga. L. 1955, p. 10, § 87; Ga. L. 1959, p. 114, §§ 8, 9; Ga. L. 1995, p. 730, § 1; Ga. L. 2016, p. 430, § 2/HB 831; Ga. L. 2017, p. 774, § 38/HB 323.)

The 2016 amendment, effective July 1, 2016, in subsection (d), substituted "service by the commander-in-chief of such force for a purpose identified in subsection (a) or (b) of Code Section 38-2-6 or Code Section 38-2-6.1 or who has been called to state-sponsored active duty as part of the National Guard of another state by that state's Governor," for "service pursuant to Code Section 38-2-6 or 38-2-6.1" in the first sentence and inserted "or a member of any other reserve component of the armed forces of the United States" in the second sentence.

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised punctuation in the first sentence of subsection (d).

Cross references.

- Priority of service designation for veterans and spouses, § 34-14-6.

Editor's notes.

- Ga. L. 2016, p. 430, § 1/HB 831, not codified by the General Assembly, provides: "This Act shall be known and cited as the 'Protecting Guardsmen's Employment Act.'"

Law reviews.

- For article, "Protecting America's Reservists, Application of State and Federal Law to Reservists' Claims of Unfair Labor Practices," see 7 Ga. St. B.J. 10 (2002).

JUDICIAL DECISIONS

Suspension before scheduled military leave.

- O.C.G.A. § 38-2-280 offered no relief to an employee who was suspended before the employee took a scheduled military leave, who did not lose the employee's position to a replacement because the employee was gone for two weeks. Britt v. Georgia Power Co., 677 F. Supp. 1169 (N.D. Ga. 1987).

RESEARCH REFERENCES

ALR.

- Reemployment of discharged servicemen, 167 A.L.R. 124; 29 A.L.R.2d 1279.

Determination of seniority rights of employee as proper subject of declaratory suit, 172 A.L.R. 1247.

What is "cause" justifying discharge from employment of returning serviceman re-employed under sec. 9 of the Military Selective Service Act of 1967 (50 USC Appendix sec. 456), 9 A.L.R. Fed. 225.

Applicability to fringe benefits of Vietnam Era Veterans' Readjustment Assistance Act provision establishing veterans' reemployment rights (38 USCS sec. 2021), 83 A.L.R. Fed. 908.

38-2-281. Exclusion of uniformed military personnel from places of amusement; penalty.

It shall be unlawful for the owner or the owner's agent, whatever may be the latter's designation, of any place of amusement or recreation otherwise open to the general public, admission to which is free or otherwise, to refuse admission or exclude any officer or enlisted man of any component of the armed forces of the United States or the organized militia of this state or of any state, territory, or the District of Columbia from the place of amusement or recreation by reason of such officer's or enlisted man's being in uniform. Any owner or agent aforesaid who violates this Code section shall be guilty of a misdemeanor.

(Ga. L. 1916, p. 158, § 3; Code 1933, § 86-9911; Ga. L. 1951, p. 311, § 59; Ga. L. 1955, p. 10, § 118.)

RESEARCH REFERENCES

ALR.

- Refusing admission to, or ejecting from, place of amusement, 30 A.L.R. 951; 60 A.L.R. 1089.

38-2-282. Officers and warrant officers to administer oaths and witness documents.

Any commissioned officer or warrant officer of any force of the organized militia and any officer in the active military service of the United States is authorized to administer the oath required for the enlistment of any person, the oath required for the appointment of any person to commissioned or warrant officer grade, and any other oath required by the laws of the United States and by this chapter and by the regulations issued thereunder, in connection with the enlistment or appointment of any person in any of such forces, and to witness military documents and instruments over his official signature.

(Ga. L. 1951, p. 311, § 18; Ga. L. 1955, p. 10, § 88.)

38-2-283. Awards; individual; unit.

  1. Every officer and enlisted man who has served this state honorably and faithfully for ten years, continuously or otherwise, and who continues in active service as an officer or enlisted man after that period shall be awarded a bronze medal of suitable design and inscription; and after each additional ten years of honorable and faithful service, continuous or otherwise, there shall be awarded, upon like continuance in service, a suitable bar. These medals and bars shall be furnished by the state through the military division upon application of the person entitled thereto, approved by intermediate commanders, and the expenses of the same shall be paid out of the military fund.
  2. In addition to the awarding of the medals and bars provided in subsection (a) of this Code section, the adjutant general is authorized to award distinctive service medals to officers and enlisted men and honorably discharged officers and enlisted men of the organized militia for meritorious services performed by the officers and enlisted men under the following provisions:
    1. The design and inscription on the medals shall be determined by the adjutant general;
    2. Not more than five medals shall be awarded in one calendar year;
    3. Two medals shall be awarded at the discretion of the adjutant general for meritorious service performed by any officer or enlisted man;
    4. Three medals shall be awarded by the adjutant general annually upon the recommendation of a board of five officers. The five officers are to be appointed each year for the purpose of selecting the three members of the organized militia who have performed the most meritorious services during the calendar year;
    5. The adjutant general shall be authorized to make such rules and regulations as he may deem advisable with reference to convening the board provided for in paragraph (4) of this subsection and the evidence as to meritorious services to be considered by the board; and
    6. The expense of the medals shall be paid from the military fund.
  3. On the recommendation of the adjutant general, the Governor may authorize the award of trophies, citations, and other types of awards to members and units of the organized militia for outstanding achievements as he deems advisable to inspire the spirit of competition and to stimulate interest to the end that technical proficiency and a high standard of efficiency in administration and training are attained. The expense of the awards shall be paid from the military fund.

(Ga. L. 1916, p. 158, § 3; Code 1933, § 86-1407; Ga. L. 1951, p. 311, § 24; Ga. L. 1955, p. 10, § 89.)

OPINIONS OF THE ATTORNEY GENERAL

Purchases subject to Art. 3, Ch. 5, T. 50. - All purchases of medals, awards, and trophies should be made by requisition to the state supervisor of purchases (now department of administrative services) who shall purchase the items under the provisions and regulations of the State Purchasing Act (see O.C.G.A. Art. 3, Ch. 5, T. 50). 1960-61 Op. Att'y Gen. p. 440.

38-2-284. Applicability of part to residents who are personnel of the National Guard of other states.

Any otherprovision of law to the contrary notwithstanding, the provisions of this part shall apply to residents of this state who are personnel of the Army National Guard or Air National Guard of any other state.

(Code 1981, §38-2-284, enacted by Ga. L. 1993, p. 1774, § 1.)

ARTICLE 4 ACTIVE DUTY POWERS

38-2-300. Right of way for troops; exceptions; penalty.

  1. The commanding officer of any force of the organized militia which is parading or performing any military duty in any street or highway may require any or all persons in the street or highway to yield the right of way to the militia, provided the carriage of the United States mail, the legitimate functions of the police, and the progress and operations of ambulances, fire departments, and fire engines and apparatus shall not be interfered with thereby. It shall be unlawful for all others to hinder, delay, or obstruct any unit of the organized militia wherever parading or performing any military duty, or to attempt to do so.
  2. Any person violating subsection (a) of this Code section shall be guilty of a misdemeanor.

(Ga. L. 1916, p. 158, § 3; Code 1933, § 86-1402; Ga. L. 1951, p. 311, § 24; Ga. L. 1955, p. 10, §§ 97, 111.)

RESEARCH REFERENCES

ALR.

- Liability for injury or damages resulting from traffic accident on highway involving vehicle in military service, 147 A.L.R. 1431.

Validity, construction, and application of state or local enactments regulating parades, 80 A.L.R.5th 255.

38-2-301. Closing places where firearms and ammunition sold, where disorder likely to occur; penalty for not obeying closing order.

  1. Whenever any force of the organized militia is or has been called out for the performance of any duty under Code Section 38-2-6, it shall be lawful for the commanding officer of the force, if in his judgment the maintenance of law and order in the area into which the force has been ordered will be promoted thereby, to close places where arms and ammunition are sold and all places where disorder is likely to occur.
  2. Any person who sells or dispenses arms or ammunition in violation of an order of a commanding officer under the authority of subsection (a) of this Code section or who maintains a place ordered to be closed under such authority shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than two nor more than five years.

(Ga. L. 1916, p. 158, § 3; Code 1933, § 86-1301; Ga. L. 1951, p. 311, § 5; Ga. L. 1955, p. 10, §§ 98, 112.)

38-2-302. Control of streets in case of riot, rout, mob, tumult, or unlawful assembly; penalty for remaining on or failing to depart streets.

  1. Whenever any force of the organized militia is or has been called out for the performance of any duty under this chapter, it shall be lawful for the commanding officer of the force, if it is deemed advisable to do so in subduing or preventing any riot, rout, mob, tumult, or unlawful assembly or the outbreak thereof, to prohibit all persons from occupying or passing any street, road, or place in the vicinity of the riot, rout, mob, tumult, or unlawful assembly, or the place where the same is threatening, or where the force may be at the time being; and otherwise to regulate the passage and occupancy of the streets and places.
  2. Any person after being duly informed of any prohibition or regulation authorized by subsection (a) of this Code section for closing or otherwise controlling streets, roads, or places who attempts to go or to remain on such street, road, or place, or who fails to depart after being warned, shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than five years.

(Ga. L. 1916, p. 158, § 3; Code 1933, §§ 86-1308, 86-9908; Ga. L. 1951, p. 311, §§ 5, 56; Ga. L. 1955, p. 10, §§ 99, 113.)

Cross references.

- Rioting generally, § 16-11-30.

Unlawful assembly, § 16-11-33.

38-2-303. Dispersion of mob; orders; where order unnecessary; penalty for failure to disperse.

  1. Before using any military force in suppression of any riot, rout, tumult, mob, or other lawless or unlawful assembly or combination, it shall be the duty of the officer in command of the force, or some person deputed by him, to command the persons composing the riotous or unlawful assembly or mob to disperse and return peaceably to their abodes and businesses. In no case shall it be necessary to use any set or particular form of words in ordering the dispersion of any riotous, tumultuous, or unlawful assembly, nor shall any command be necessary when the officer or person, in order to give it, would be put in imminent danger of bodily harm or loss of life or where the unlawful assembly or mob is engaged in the commission or perpetration of any felony, in assaulting or attacking any civil officer or person called to aid him in the preservation of the peace, or is otherwise engaged in actual violence to person or property.
  2. Any person or persons composing or taking part in any riot, rout, mob, tumult, or lawless combination or assembly who, after being duly commanded to disperse as provided in subsection (a) of this Code section, willfully and intentionally fail to do so shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than five years.

(Ga. L. 1916, p. 158, § 3; Code 1933, §§ 86-1304, 86-9906; Ga. L. 1951, p. 311, §§ 5, 54; Ga. L. 1955, p. 10, §§ 100, 114; Ga. L. 1982, p. 3, § 38; Ga. L. 1992, p. 6, § 38.)

Cross references.

- Rioting generally, § 16-11-30.

Unlawful assembly, § 16-11-33.

RESEARCH REFERENCES

C.J.S.

- 77 C.J.S., Riot; Insurrection, § 31 et seq.

38-2-304. Duty of citizens to disperse when shot fired or missile thrown; penalty; felony upon failure to disperse after order.

  1. Whenever any shot is fired or missile thrown at, against, or upon any force of the organized militia or against any officer or member thereof assembling or assembled for the purpose of performing any duties under this chapter, it shall forthwith be the duty of every person in the assemblage from which the shot is fired or the missile thrown to disperse immediately and retire therefrom without awaiting any order to do so.
  2. Any person failing to retire immediately from any assemblage after a shot has been fired or a missile thrown in any manner mentioned in subsection (a) of this Code section shall be guilty of a misdemeanor; and any person so remaining in the assemblage after being duly commanded to disperse as provided in Code Section 38-2-303 shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than five years.

(Ga. L. 1916, p. 158, § 3; Code 1933, §§ 86-1307, 86-9907; Ga. L. 1951, p. 311, §§ 5, 55; Ga. L. 1955, p. 10, §§ 101, 115.)

Cross references.

- Rioting generally, § 16-11-30.

Unlawful assembly, § 16-11-33.

38-2-305. Authority of commanding officer to order vicinity of jail, building, or other place, off limits to unauthorized personnel; arrest; penalty.

  1. The commanding officer of any force of the organized militia guarding any jail, building, or other place or escorting any prisoner or performing any other act of duty may, if he deems it advisable, prescribe a reasonable distance in the vicinity of the jail, building, or other place, or escort of the prisoner within which unauthorized persons shall not come. Any person coming within the limits so prescribed may be placed in arrest by the military authorities.
  2. Any person coming within the limits prescribed by the commanding officer of any body or force of the organized militia under subsection (a) of this Code section without the permission of the officer, or refusing to depart after being ordered to do so, shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than five years.

(Ga. L. 1916, p. 158, § 3; Code 1933, §§ 86-1403, 86-9909; Ga. L. 1951, p. 311, §§ 24, 57; Ga. L. 1955, p. 10, §§ 102, 116.)

RESEARCH REFERENCES

ALR.

- Curfew in war time, 147 A.L.R. 1270.

38-2-306. Prohibited conduct in area of military duty performance.

  1. Any person who after due warning trespasses upon any armory, arsenal, camp, range, base, or other facility of the organized militia or other place where any force of the organized militia is performing military duty, or who in any manner interrupts or molests the discharge of military duties by any member or force of the organized militia, or who interrupts or prevents the passage of troops of the organized militia, or who insults, by jeer or otherwise, any member of the organized militia may be placed in arrest by any officer of the force performing the military duty at the place where the offense is committed and delivered to the proper civil authorities.
  2. The commanding officer of any force of the organized militia performing military duty in or at any armory, arsenal, camp, range, base, or other facility of the organized militia or other place where the force is performing military duty may prohibit persons from hawking, peddling, vending, selling, or auctioning goods, wares, merchandise, food products, or beverages and may prohibit all gambling, or the sale or use of spirituous beverages, or the establishment or maintenance of a disorderly place within the limits of the armory, arsenal, camp, range, base, or other facility of the organized militia or other place where the force is performing military duty or within such limits not exceeding one mile therefrom as he may prescribe.
  3. Any person who violates any part of subsection (a) or (b) of this Code section shall be guilty of a misdemeanor.

(Ga. L. 1916, p. 158, § 3; Code 1933, §§ 86-1405, 86-9910; Ga. L. 1951, p. 311, §§ 24, 58; Ga. L. 1955, p. 10, §§ 103, 117.)

Cross references.

- Criminal trespass generally, § 16-7-21.

RESEARCH REFERENCES

ALR.

- Curfew in war time, 147 A.L.R. 1270.

38-2-307. Power of National Guard members to effect an arrest.

Members of the National Guard may, at the discretion of the Governor, have the same powers of arrest and apprehension as do law enforcement officers when called to active duty to respond to emergencies pursuant to Code Section 38-2-6, 38-2-7, 45-12-31, or 45-12-34 or pursuant to any other provision of state or federal law other than Title 10 of the United States Code.

(Ga. L. 1969, p. 228, § 5; Ga. L. 2004, p. 105, § 3.)

Cross references.

- Power of arrest generally, T. 17, C. 4.

ARTICLE 5 CODE OF MILITARY JUSTICE

Effective date.

- This article became effective July 1, 2015. See Editor's notes for applicability.

Code Commission notes.

- Pursuant to Code Section28-9-3, in 2015, the amendment to Code Section38-2-464 by Ga. L. 2015, p. 693, § 3-32/HB 233, was treated as impliedly repealed and superseded by Ga. L. 2015, p. 753, § 1/HB 98, due to irreconcilable conflict. See County of Butts v. Strahan, 151 Ga. 417 (1921); Keener v. McDougall, 232 Ga. 273 (1974).

Editor's notes.

- Ga. L. 2015, p. 753, § 1/HB 98, effective July 1, 2015, repealed the Code sections formerly codified at this article and enacted the current article. The former article consisted of Code Sections 38-2-320 through 38-2-326, 38-2-340 through 38-2-347, 38-2-360, 38-2-370 through 38-2-376, 38-2-390 through 38-2-397, 38-2-410 through 38-2-415, 38-2-430 through 38-2-449, 38-2-460 through 38-2-464, 38-2-480 through 38-2-493, 38-2-510 through 38-2-553, and 38-2-570 through 38-2-577, relating to the Georgia Code of Military Justice, and was based on Ga. L. 1916, p. 158, § 3; Code 1933, §§ 86-1201 - 86-1204; Ga. L. 1951, p. 311, § 23; Ga. L. 1955, p. 10, §§ 60.1 - 60.116, 61.1 - 61.12; Ga. L. 1959, p. 114, §§ 2-6; Ga. L. 1982, p. 3, § 38; Ga. L. 1985, p. 356, §§ 9, 10; Ga. L. 1996, p. 740, § 3.

Ga. L. 2015, p. 753, § 4/HB 98, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2015, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2015, shall be governed by the statutes in effect at the time of such offense. The enactment of this Act shall not affect any prosecutions for acts occurring before July 1, 2015, and shall not act as an abatement of any such prosecutions."

PART 1 G ENERAL PROVISIONS

38-2-1000. Short title.

This article shall be known and may be cited as the "Georgia Code of Military Justice."

(Code 1981, §38-2-1000, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

38-2-1001. Definitions.

As used in this article, the term:

  1. "Accuser" means a person who signs and swears to charges, directs that charges nominally be signed and sworn to by another, or has an interest other than an official interest in the prosecution of the accused.
  2. "Another state" means any one of the several states of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, and the United States Virgin Islands.
  3. "Apprehension" means the taking of a person into custody.
  4. "Arrest" means the restraint of a person by oral or written order that is not imposed as punishment and that directs such person to remain within specified limits.
  5. "Arrest in quarters" means a punishment requiring a person to remain within his or her military residence, whether a tent, stateroom, or other quarters assigned, or a private residence when government quarters have not been provided during the period of punishment.
  6. "Cadet," "candidate," or "midshipman" means a person enrolled in or attending a military academy, regional training institute, or any other formal education program for the purpose of becoming a commissioned officer in the organized militia.
  7. "Classified information" means any information or material that has been determined by an official of the United States or of another state, pursuant to law, an executive order, or regulation, to require protection against unauthorized disclosure for reasons of national or state security.
  8. "Commander" means:
    1. A commissioned officer of the organized militia who is in command or who is in charge;
    2. The Governor; or
    3. The adjutant general.
  9. "Commanding officer" means a commander.
  10. "Confinement" means physical restraint imposed by order of competent authority depriving a person of freedom.
  11. "Convening authority" means the person convening the court, a successor in office, or an authorized designee of the person or successor.
  12. "Enlisted member" means a person in an enlisted grade.
  13. "Judge advocate" means an individual who is certified or designated as such by the Judge Advocate General of the United States Army or Air Force or certified by the state judge advocate as competent to perform such military justice duties required by this article. Such individual shall be a commissioned officer of the organized militia.
  14. "Military court" means a court-martial or court of inquiry.
  15. "Military judge" means an official of a general or special court-martial detailed by the convening authority.
  16. "Organized militia" means the National Guard of this state as provided for by Title 32 of the United States Code, the Georgia Naval Militia, and any other military force organized under the Constitution and laws of this state when not in a status subjecting such force or forces to exclusive jurisdiction under Chapter 47 of Title 10 of the United States Code.
  17. "Record," when used in connection with the proceedings of a court-martial, means:
    1. An official written transcript, written summary, or other writing relating to the proceedings; or
    2. An official audiotape, videotape, digital image or file, or similar material from which sound, or sound and visual images, depicting the proceedings may be reproduced.
  18. "Senior force commander" means the assistant adjutant general for army, the assistant adjutant general for air, or the brigadier general in charge of the State Defense Force.
  19. "Superior commissioned officer" means a commissioned officer superior in rank or command.

(Code 1981, §38-2-1001, enacted by Ga. L. 2015, p. 753, § 1/HB 98; Ga. L. 2016, p. 864, § 38/HB 737.)

The 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, revised capitalization in paragraph (16).

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 801.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 177.

38-2-1002. Applicability; jurisdiction.

  1. This article shall apply to all members of the organized militia at all times and in all places when not serving as provided for by Title 10 of the United States Code.
    1. Subject matter jurisdiction under this article shall be established if a nexus exists between an offense set forth in Part 10 of this article, except as provided in Code Section 38-2-1111 or 38-2-1112.1, and the organized militia. When a member is in a status as provided for by Title 32 of the United States Code or on state active duty, a rebuttable presumption exists that such nexus is established. As used in this paragraph, the term "state active duty" means full-time duty in the organized militia under an order of the Governor or otherwise issued by authority of law and paid by funds of this state, including travel to and from such duty.
    2. Courts-martial shall have primary jurisdiction of an offense set forth in Part 10 of this article, except as provided in Code Section 38-2-1111 or 38-2-1112.1.
    3. A proper civilian court shall have primary jurisdiction of a nonmilitary offense when such act or omission violates both this article and local civilian criminal law, foreign or domestic. In such case, a court-martial may be initiated only after the civilian authority has declined to prosecute or dismissed such charge; provided, however, that jeopardy has not attached.
    4. Jurisdiction over attempted crimes, conspiracy crimes, solicitation, and accessory crimes shall be determined by the underlying offense.

(Code 1981, §38-2-1002, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 802.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 200.

ALR.

- Civil and criminal liability of soldiers, sailors, and militiamen, 147 A.L.R. 1429; 151 A.L.R. 1462; 151 A.L.R. 1463; 153 A.L.R. 1431; 153 A.L.R. 1432; 154 A.L.R. 1457; 158 A.L.R. 1462.

38-2-1003. Discharge fraudulently obtained.

  1. Each person discharged from the organized militia who is later charged with having fraudulently obtained such discharge shall be, subject to Code Section 38-2-1043, subject to trial by court-martial on that charge and is, after apprehension, subject to this article while in custody under the direction of the organized militia for that trial. Upon conviction of such charge, such person shall be subject to trial by court-martial for all offenses under this article committed prior to the fraudulent discharge.
  2. No person who has deserted from the organized militia shall be relieved from amenability to the jurisdiction of this article by virtue of a separation from any later period of service.

(Code 1981, §38-2-1003, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 803.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 199.

ALR.

- Civil and criminal liability of soldiers, sailors, and militiamen, 147 A.L.R. 1429; 151 A.L.R. 1462; 151 A.L.R. 1463; 153 A.L.R. 1431; 153 A.L.R. 1432; 154 A.L.R. 1457; 158 A.L.R. 1462.

38-2-1004. Calculating forfeiture punishments.

When calculating forfeiture punishments under this article for nonactive duty members of the Georgia National Guard, each unit training assembly shall constitute a day. Otherwise, any punishment authorized by this article which is measured in terms of days shall mean successive days when served in a status of annual field training and shall mean succeeding duty days when served in a status other than annual field training.

(Code 1981, §38-2-1004, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

38-2-1005. Territorial applicability of article.

  1. This article shall be applicable at all times and in all places, provided that either the person subject to this article is in a duty status or, if not in a duty status, that there is a nexus between the act or omission constituting an offense under this article and the efficient functioning of the organized militia. Such grant of military jurisdiction shall neither preclude nor limit civilian jurisdiction over an offense except when the prohibition of double jeopardy is concerned.
  2. Courts-martial and courts of inquiry may be convened and held in units of the organized militia while those units are serving outside of this state with the same jurisdiction and powers as to persons subject to this article as if such proceedings were held inside this state, and offenses committed outside this state may be tried and punished under this article either inside or outside this state.

(Code 1981, §38-2-1005, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 805.

RESEARCH REFERENCES

ALR.

- Civil and criminal liability of soldiers, sailors, and militiamen, 147 A.L.R. 1429; 151 A.L.R. 1462; 151 A.L.R. 1463; 153 A.L.R. 1431; 153 A.L.R. 1432; 154 A.L.R. 1457; 158 A.L.R. 1462.

38-2-1006. State judge advocate; appointment; eligibility; staff judge advocate.

  1. The Governor, on the recommendation of the adjutant general, shall appoint an individual to serve as the state judge advocate. To be eligible for such appointment, such individual shall be a judge advocate, a member of the State Bar of Georgia in good standing for not less than ten years, and have not less than five years of continuous service in the army or air National Guard of this state. The state judge advocate shall serve as the primary legal adviser to the adjutant general and shall serve as the judge advocate on the joint staff. The state judge advocate shall supervise the Office of the State Judge Advocate and shall have authority for assignment, placement, and billeting of all judge advocates.
  2. The assistant adjutant general for army, the assistant adjutant general for air, and the brigadier general in charge of the State Defense Force, on the recommendation of the state judge advocate, shall each appoint a staff judge advocate for the Army National Guard, a staff judge advocate for the Air National Guard, and a staff judge advocate for the State Defense Force, respectively. Such staff judge advocates shall serve as the respective primary legal advisers to the assistant adjutant general for army, the assistant adjutant general for air, and the brigadier general in charge of the State Defense Force.
  3. The state judge advocate, or his or her assistants, shall make frequent inspections in the field in supervision of the administration of military justice in the organized militia.
  4. Convening authorities shall at all times communicate directly with a judge advocate in the same military service in matters relating to the administration of military justice.
  5. No person who has acted as member, military judge, trial counsel, defense counsel, or investigating officer, or who has been a witness, in any case may later act in any capacity in any reviewing authority upon the same case.

(Code 1981, §38-2-1006, enacted by Ga. L. 2015, p. 753, § 1/HB 98; Ga. L. 2017, p. 774, § 38/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised language in subsections (a) and (b).

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 806.

PART 2 A PPREHENSION AND RESTRAINT

38-2-1007. Apprehension.

  1. Any person authorized by this article or Chapter 47 of Title 10 of the United States Code, or by regulations issued under either, to take persons into custody subject to this article, any marshal of a court-martial appointed pursuant to the provisions of this article, and any peace officer or civil officer having authority to take offenders into custody under the laws of the United States or of another state, may do so upon probable cause that an offense has been committed and that the person taken into custody committed it.
  2. Commissioned officers, warrant officers, petty officers, and noncommissioned officers shall have authority to quell quarrels, frays, and disorders among persons subject to this article and to take persons into custody subject to this article who take part therein.
  3. If an offender is taken into custody outside this state, the offender's return to this state shall be in accordance with normal extradition procedures or by reciprocal agreement.
  4. No person authorized by this article to take persons into custody subject to this article, or the place where such offender is confined, restrained, held, or otherwise housed, shall require payment of any fee or charge for so receiving, apprehending, confining, restraining, holding, or otherwise housing a person except as otherwise provided by law.

(Code 1981, §38-2-1007, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 807.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 207.

38-2-1008. Reserved.

(Code 1981, §38-2-1008, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

38-2-1009. Who may order the arrest or confinement of members.

  1. An enlisted member may be ordered into arrest or confinement by any commander in the grade of O-4 or above by an order, oral or written, delivered in person or through any other person who is subject to this article. A commander in the grade of O-4 or above may authorize commissioned officers, warrant officers, petty officers, or noncommissioned officers to order enlisted members of the commanding officer's command, or subject to the commanding officer's authority, into arrest or confinement.
  2. A commissioned officer, a warrant officer, or a civilian subject to this article or to trial thereunder may be ordered into arrest or confinement only by a commanding officer in the grade of O-6 or above to whose authority the person is subject by an order, oral or written, delivered in person or by another commissioned officer. The authority to order such persons into arrest or confinement shall not be delegated.
  3. No person may be ordered into arrest or confinement except for probable cause.
  4. This article shall not limit the authority of persons authorized to apprehend offenders to secure the custody of an alleged offender until proper authority may be notified.
  5. The Governor, or the adjutant general under delegation by the Governor, may by written order, or regulations issued pursuant to Part 1 of Article 2 of this chapter, further limit who may order the arrest or confinement of members.

(Code 1981, §38-2-1009, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 809.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 207.

C.J.S.

- 6A C.J.S., Arrest, § 10 et seq.

38-2-1010. Restraint of persons charged with offenses.

Any person subject to this article who is charged with an offense under this article shall be ordered into arrest or confinement by the adjutant general, as circumstances may require. When any person subject to this article is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him or her of the specific wrong of which he or she is accused, and diligent steps shall be taken to try him or her or to dismiss the charges and release him or her.

(Code 1981, §38-2-1010, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 810.

38-2-1011. Confinement and imprisonment in civil jails.

Confinement and imprisonment other than in a guard house, whether prior to, during, or after trial by a military court, shall be executed in jails or correctional institutions designated by the Governor, or by the adjutant general under delegation by the Governor, for that purpose.

(Code 1981, §38-2-1011, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 221.

38-2-1012. No confinement with enemy prisoners.

No member of the organized militia shall be placed in confinement in immediate association with enemy prisoners.

(Code 1981, §38-2-1012, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

38-2-1013. Restriction on means of punishment.

No person, while being held for trial or awaiting a verdict, shall be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him or her, nor shall the arrest or confinement imposed upon such person be any more rigorous than the circumstances require to insure his or her presence and the safety of others, but he or she may be subjected to minor punishment during such period for infractions of discipline. Any person placed in confinement while being held for trial or awaiting a verdict shall be given administrative credit for such time to offset any sentence subsequently imposed.

(Code 1981, §38-2-1013, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 813.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 216.

38-2-1014. Delivery of offenders to civil authorities.

  1. A person who is subject to this article and accused of an offense against civil authority shall be delivered, upon request, to the civil authority for trial or confinement.
  2. When delivery under this article is made to any civil authority of a person undergoing sentence of a court-martial, and the delivery, if followed by conviction in a civil tribunal, interrupts the execution of the sentence of the court-martial, the offender, after having answered to the civil authorities for the offense, shall, upon the request of competent military authority, be returned to the place of original custody for the completion of his or her sentence.

(Code 1981, §38-2-1014, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 814.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military, and Civil Defense, §§ 189, 190.

C.J.S.

- 6A C.J.S., Arrest, § 15..

ALR.

- Civil and criminal liability of soldiers, sailors, and militiamen, 147 A.L.R. 1429; 151 A.L.R. 1462; 151 A.L.R. 1463; 153 A.L.R. 1431; 153 A.L.R. 1432; 154 A.L.R. 1457; 158 A.L.R. 1462.

PART 3 N ONJUDICIAL PUNISHMENT

38-2-1015. Commanding officer's disciplinary punishment; regulations limiting; officers in charge; appeal; effect on more serious offenses.

  1. Under such regulations as may be prescribed by the Governor pursuant to Part 1 of Article 2 of this chapter, or the adjutant general under delegation by the Governor, any commanding officer may impose disciplinary punishments for minor offenses without the intervention of a court-martial pursuant to this Code section. A commanding officer's authority under this Code section shall not be delegated.
  2. As provided for by subsection (a) of this Code section, any commanding officer may impose upon enlisted members of such commanding officer's command one or more of the following punishments:
    1. An admonition;
    2. A reprimand;
    3. The withholding of privileges for not more than six months, whether or not such withholding is for consecutive months;
    4. Restitution;
    5. The forfeiture of pay of not more than seven days' pay;
    6. A reduction by one grade of a member in the grade of E-4 and below;
    7. Extra duties, including, but not limited to, fatigue duties, for not more than 14 days, whether or not such days are consecutive; and
    8. Restriction to certain specified limits, with or without suspension from duty, for not more than 14 days, whether or not such days are consecutive.
  3. As provided for by subsection (a) of this Code section, any commanding officer in the grade of O-4 or above may impose upon enlisted members of such commanding officer's command one or more of the following punishments:
    1. Any punishment authorized in paragraphs (1) through (4) of subsection (b) of this Code section;
    2. The forfeiture of not more than one-half of one month's pay per month for two months;
    3. A reduction by one grade of a member in the grade of E-6 and below;
    4. Extra duties, including, but not limited to, fatigue duties, for not more than 45 days, whether or not such days are consecutive; and
    5. Restriction to certain specified limits, with or without suspension from duty, for not more than 60 days, whether or not such days are consecutive.
  4. As provided for by subsection (a) of this Code section, any commanding officer in the grade of O-6 or above may impose upon enlisted members of such commanding officer's command one or more of the following punishments:
    1. Any punishment authorized in paragraphs (1), (2), (4), and (5) of subsection (c) of this Code section; and
    2. A reduction by one grade of a member in the grade of E-7 and below.
  5. As provided for by subsection (a) of this Code section, the adjutant general or an officer of a general or flag rank in command may impose one or more of the following punishments:
    1. Upon commissioned or warrant officers under the command of the adjutant general or officers of a general or flag rank command:
      1. Any punishment authorized in paragraphs (1), (2), and (5) of subsection (c) of this Code section; and
      2. Arrest in quarters for not more than 30 days, whether or not such days are consecutive; and
    2. Upon enlisted members under the command of the adjutant general or officers of a general or flag rank command:
      1. Any punishment authorized in paragraph (1) of subsection (d) of this Code section; and
      2. A reduction by one grade.
  6. Whenever any of the punishments provided for by this Code section are combined to run consecutively, the total length of the combined punishment shall not exceed the authorized duration of the longest punishment in the combination, and there shall be an apportionment of punishments such that no single punishment in the combination exceeds its authorized length under this Code section.
    1. The officer who imposes punishment under this Code section, or such officer's successor in command, may, at any time, suspend, set aside, mitigate, or remit any part or amount of the punishment and restore all rights, privileges, and property affected. Such officer may also:
      1. Mitigate reduction in grade to forfeiture of pay;
      2. Mitigate arrest in quarters to restriction; or
      3. Mitigate extra duties to restriction.
    2. The mitigated punishment under this subsection shall not be for a greater period than the punishment mitigated. When mitigating reduction in grade to forfeiture of pay, the amount of the forfeiture shall not be greater than the amount that could have been imposed initially under this Code section by the officer who imposed the punishment mitigated.
  7. A person punished under this Code section who considers the punishment unjust or disproportionate to the offense may through the proper channel appeal to the next superior authority within 30 days after the punishment is either announced or sent to the accused, as the commander may determine. The appeal shall be promptly forwarded and decided, but the person punished may in the meantime be required to undergo the punishment adjudged. The superior authority shall exercise the same powers with respect to the punishment imposed as may be exercised under subsection (g) of this Code section by the officer who imposed the punishment. Before acting on an appeal from a punishment, the authority who is to act on the appeal may refer the case to a judge advocate for consideration and advice.
  8. The imposition and enforcement of disciplinary punishment under this Code section for any act or omission shall not be a bar to trial by court-martial or a civilian court of competent jurisdiction for a serious crime or offense growing out of the same act or omission and not properly punishable under this Code section; but the fact that a disciplinary punishment has been enforced may be shown by the accused upon trial and, when so shown, it shall be considered in determining the measure of punishment to be adjudged in the event of a finding of guilty.
  9. Whenever a punishment of forfeiture of pay is imposed under this Code section, the forfeiture may apply to pay accruing before, on, or after the date that punishment is imposed.
  10. Regulations issued pursuant to Part 1 of Article 2 of this chapter may prescribe the form of records to be kept of proceedings under this Code section and may prescribe that certain categories of those proceedings shall be in writing.
  11. No member has the right to decline nonjudicial punishment under this Code section and to demand any type of court-martial.

(Code 1981, §38-2-1015, enacted by Ga. L. 2015, p. 753, § 1/HB 98; Ga. L. 2016, p. 864, § 38/HB 737.)

The 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, revised punctuation in paragraph (b)(5).

Cross references.

- Statute of limitations, § 38-2-437.

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 815.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, §§ 186, 187.

PART 4 C LASSIFICATION OF COURTS-MARTIAL

38-2-1016. Classification of courts-martial.

There shall be three kinds of courts-martial in the organized militia:

  1. General courts-martial, which shall consist of:
    1. A military judge and not less than six members; or
    2. Only a military judge, if, before the court is assembled, the accused, knowing the identity of the military judge and after consultation with defense counsel, requests orally on the record or in writing a court composed of only a military judge and the military judge approves;
  2. Special courts-martial, which shall consist of:
    1. A military judge and not less than six members; or
    2. Only a military judge, if one has been detailed to the court, and the accused under the same conditions as those provided for in subparagraph (B) of paragraph (1) of this Code section so requests; and
  3. Summary courts-martial, consisting of one commissioned officer.

(Code 1981, §38-2-1016, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 816.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 178 et seq.

ALR.

- Use of prior military conviction to establish repeat offender status, 11 A.L.R.5th 218.

38-2-1017. Jurisdiction of courts-martial; generally.

Each force of the organized militia has court-martial jurisdiction over all members of the particular force of the organized militia who are subject to this article. The Georgia Army National Guard and the Georgia Air National Guard shall have court-martial jurisdiction over all members subject to this article.

(Code 1981, §38-2-1017, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 816.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 178 et seq.

ALR.

- Use of prior military conviction to establish repeat offender status, 11 A.L.R.5th 218.

38-2-1018. General courts-martial.

Subject to Code Section 38-2-1017, general courts-martial shall have jurisdiction to try persons subject to this article for any offense made punishable by this article, and shall, under such limitations as the Governor may prescribe pursuant to Part 1 of Article 2 of this chapter, adjudge any one or more of the following punishments not otherwise forbidden by this article:

  1. Confinement for a period of not more than ten years;
  2. Restriction to specified limits for not more than six months;
  3. Dismissal, dishonorable discharge, or bad conduct discharge;
  4. Forfeiture of all or a portion of pay and allowances;
  5. Restitution;
  6. Reduction to the lowest or any intermediate pay grade of enlisted persons;
  7. A reprimand; and
  8. No punishment.

(Code 1981, §38-2-1018, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

Cross references.

- Vesting of efficiency and medical examining boards with powers of courts of inquiry and courts-martial, § 38-2-216.

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 818.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 188.

38-2-1019. Special courts-martial.

Subject to Code Section 38-2-1017, special courts-martial shall have jurisdiction to try persons subject to this article for any offense made punishable by this article, and shall, under such limitations as the Governor, or the adjutant general by delegation of the Governor, may prescribe by regulations issued pursuant to Part 1 of Article 2 of this chapter, adjudge any one or more of the following punishments not otherwise forbidden by this article:

  1. Confinement for a period of not more than one year;
  2. Restriction to specified limits for not more than six months;
  3. Bad conduct discharge;
  4. Forfeiture of all or a portion of pay and allowances for not more than one year;
  5. Restitution;
  6. Reduction to the lowest or any intermediate pay grade of enlisted persons;
  7. A reprimand; and
  8. No punishment.

(Code 1981, §38-2-1019, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 819.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 188.

38-2-1020. Summary courts-martial.

  1. Subject to Code Section 38-2-1017, summary courts-martial shall have jurisdiction to try persons subject to this article, except for commissioned or warrant officers, cadets, candidates, and midshipmen, for any offense made punishable by this article under such limitations as the Governor, or the adjutant general by delegation of the Governor, may prescribe by regulations issued pursuant to Part 1 of Article 2 of this chapter.
  2. No person with respect to whom summary courts-martial shall have jurisdiction may be brought to trial before a summary court-martial if he or she objects thereto. If objection to trial by summary court-martial is made by an accused, trial by special or general court-martial shall be ordered, as may be appropriate. Summary courts-martial shall, under such limitations as the Governor, or the adjutant general by delegation of the Governor, may prescribe by regulations issued pursuant to Part 1 of Article 2 of this chapter, adjudge any one or more of the following punishments not otherwise forbidden by this article:
    1. Confinement for a period of not more than one month;
    2. Restriction to specified limits for not more than two months;
    3. Forfeiture of all or a portion of pay and allowances for not more than 60 days;
    4. Restitution;
    5. Reduction of no more than two grades of enlisted persons;
    6. A reprimand; and
    7. No punishment.

(Code 1981, §38-2-1020, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 820.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 188.

38-2-1021. Reserved.

(Code 1981, §38-2-1021, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

PART 5 C ONVENING OF COURTS-MARTIAL

38-2-1022. Convening of general courts-martial.

  1. General courts-martial may be convened by the Governor. The Governor may delegate the authority to convene general courts-martial to the adjutant general, but such authority shall not be delegated further.
  2. If the Governor is the accuser, the general court-martial shall be convened by the Lieutenant Governor.
  3. For administrative purposes other than the actual convening of a general court-martial, the adjutant general shall be considered the general court-martial convening authority.

(Code 1981, §38-2-1022, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 822.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 182.

38-2-1023. Convening of special courts-martial.

  1. Special courts-martial may be convened by the Governor, the adjutant general, the assistant adjutant general for army, or the assistant adjutant general for air.
  2. If any individual in subsection (a) of this Code section is an accuser, the special court-martial shall be convened by superior competent authority and may in any case be convened by such superior authority if considered desirable by such authority.

(Code 1981, §38-2-1023, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 823.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 182.

38-2-1024. Convening of summary courts-martial.

  1. Summary courts-martial may be convened by:
    1. Any person authorized to convene a special court-martial under subsection (a) of Code Section 38-2-1023; or
    2. Any commander in the grade of O-6 or above.
  2. If any individual listed in subsection (a) of this Code section is an accuser, the summary court-martial shall be convened by superior competent authority and may in any case be convened by such superior authority if considered desirable by such authority.
  3. The Governor, or the adjutant general by delegation of the Governor, may, by written order, further limit who may convene actions under this Code section.

(Code 1981, §38-2-1024, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 824.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 182.

38-2-1025. Eligibility to serve on courts-martial.

  1. For purposes of this Code section, the term "unit" means any regularly organized body of the organized militia not larger than a company, a squadron, a division of the naval militia, or a body corresponding to one of them.
  2. Any commissioned officer of the organized militia shall be eligible to serve on all courts-martial for the trial of any person who is subject to this article.
  3. Any warrant officer of the organized militia shall be eligible to serve on general and special courts-martial for the trial of any person who is subject to this article, other than a commissioned officer.
  4. Any enlisted member of the organized militia who is not a member of the same unit as the accused shall be eligible to serve on general and special courts-martial for the trial of any enlisted member who is subject to this article, but such enlisted member shall serve as a member of a court only if, before the conclusion of a session called by the military judge under Code Section 38-2-1039 prior to trial or, in the absence of such a session, before the court is assembled for the trial of the accused, the accused personally has requested orally on the record or in writing that enlisted members serve on it. After such a request, the accused shall not be tried by a general or special court-martial the membership of which does not include enlisted members in a number comprising at least one-third of the total membership of the court, unless eligible enlisted members cannot be obtained on account of physical conditions or military exigencies. If such members cannot be obtained, the court shall be assembled and the trial held without such enlisted members, but the convening authority shall make a detailed written statement, to be appended to the record, stating why such number of enlisted members could not be obtained.
  5. No person who is subject to this article shall be tried by a court-martial any member of which is junior to the accused in rank or grade.
  6. When convening a court-martial, the convening authority shall detail as members thereof such members of the organized militia as, in the convening authority's opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament. No member of the organized militia shall be eligible to serve as a member of a general or special court-martial when that member is the accuser, a witness, or has acted as investigating officer or as counsel in the same case.
  7. Before a court-martial is assembled for the trial of a case, the convening authority may excuse a member of the court from participating in the case. The convening authority may delegate the authority under this subsection to a judge advocate or to any other principal assistant.

(Code 1981, §38-2-1025, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 825.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 183.

38-2-1026. Military judge.

  1. A military judge shall be detailed to each general and special court-martial by the authority convening a general or special court-martial. The military judge shall preside over each open session of the court-martial to which the military judge has been detailed.
  2. A military judge shall be:
    1. An active or retired commissioned officer of the organized militia or state military force of another state or of the armed forces of the United States or a reserve component thereof;
    2. A member in good standing of the bar of the highest court of another state or a member of the bar of a federal court for at least five years; and
    3. Certified as qualified for duty as a military judge by the judge advocate general of the army, air force, or navy and the state judge advocate.
  3. In the instance when a military judge is not a member of the bar of the highest court of this state, the military judge shall be deemed admitted pro hac vice, subject to filing a certificate with the state judge advocate setting forth such qualifications as provided for in subsection (b) of this Code section.
  4. The military judge of a general or special court-martial shall be designated by the state judge advocate, or a designee, for detail by the convening authority. Neither the convening authority nor any primary staff member of the convening authority shall prepare or review any report concerning the effectiveness, fitness, or efficiency of the military judge so detailed, which relates to performance of duty as a military judge.
  5. Whenever possible, the military judge of a general or special court-martial shall be of the same branch of service as the accused.
  6. No person shall be eligible to act as military judge in a case if that person is the accuser or a witness or has acted as investigating officer or a counsel in the same case.
  7. The military judge of a court-martial shall not consult with the members of the court except in the presence of the accused, trial counsel, and defense counsel and shall not vote with the members of the court.
  8. If no person who meets the qualifications to serve as military judge under this Code section is readily available in the sole discretion of the state judge advocate, a law officer shall be appointed. A law officer may serve in place of a military judge provided he or she meets the qualifications as provided for in paragraphs (1) and (2) of subsection (b) of this Code section and is approved for such service, in writing, by the state judge advocate.

(Code 1981, §38-2-1026, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2015, a period was added at the end of paragraph (b)(3).

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 826.

38-2-1027. Trial counsel and assistants.

    1. For each general and special court-martial the convening authority shall detail a trial counsel and such assistants as appropriate.
    2. For each general and special court-martial, if the United States Army Trial Defense Services or a similar entity exists, such entity shall detail defense counsel and such assistants as are appropriate. If no appropriate such entity exists, the convening authority shall detail defense counsel and such assistants as are appropriate.
    3. No person who has acted as investigating officer, military judge, a witness, or court member in any case may act later as trial counsel, assistant trial counsel, or, unless expressly requested by the accused, as defense counsel or assistant or associate defense counsel in the same case. No person who has acted for the prosecution may act later in the same case for the defense nor may any person who has acted for the defense act later in the same case for the prosecution.
  1. Except as provided in subsection (c) of this Code section, trial counsel or defense counsel detailed for a general or special court-martial shall be a judge advocate.
  2. In the instance where a defense counsel is not a member of the bar of the highest court of this state, the defense counsel shall be deemed admitted pro hac vice, subject to filing a certificate with the military judge setting forth the qualifications that counsel is:
    1. A commissioned officer of the organized militia or state military force of another state or of the armed forces of the United States or a reserve component thereof;
    2. A member in good standing of the bar of the highest court of another state; and
    3. Certified as a judge advocate in the judge advocate general's corps of the army, air force, navy, or the marine corps.
  3. Nothing in this Code section shall preclude the accused from hiring a civilian attorney who is a member of the bar of this state or who has been admitted pro hac vice. Such attorney shall serve the accused at no cost to another state or the federal government.

(Code 1981, §38-2-1027, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

Cross references.

- Right of counsel, U.S. Const., amend. 6 and Ga. Const., 1983, Art. I, Sec. I, Para. XIV.

Attorneys generally, T. 15, C. 19.

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 827.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 212.

38-2-1028. Appointment of court reporters and interpreters.

Under such regulations as may be prescribed by the Governor pursuant to Part 1 of Article 2 of this chapter, the convening authority of a general or special court-martial or court of inquiry shall detail or employ qualified court reporters who shall record the proceedings of and testimony taken before that court. Under like regulations, the convening authority may detail or employ interpreters who shall interpret for the court.

(Code 1981, §38-2-1028, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 828.

38-2-1029. Absent and additional members; not less than six members required; disability of judge.

  1. No member of a general or special court-martial shall be absent or excused after the court has been assembled for the trial of the accused unless excused as a result of a challenge, excused by the military judge for physical disability or other good cause, or excused by order of the convening authority for good cause.
  2. Whenever a general court-martial, other than a general court-martial composed of a military judge only, is reduced below six members, the trial shall not proceed unless the convening authority details new members sufficient in number to provide not less than six members. The trial shall proceed with the new members present after the recorded evidence previously introduced before the members of the court has been read to the court in the presence of the military judge, the accused, and counsel for both sides.
  3. Whenever a special court-martial, other than a special court-martial composed of a military judge only, is reduced below six members, the trial shall not proceed unless the convening authority details new members sufficient in number to provide not less than six members. The trial shall proceed with the new members present as if no evidence had been introduced previously at the trial, unless a verbatim record of the evidence previously introduced before the members of the court or a stipulation thereof is read to the court in the presence of the military judge, the accused, and counsel for both sides.
  4. If the military judge of a court-martial composed of a military judge only is unable to proceed with the trial because of physical disability, as a result of a challenge, or for other good cause, the trial shall proceed, subject to any applicable conditions of subparagraph (B) of paragraphs (1) and (2) of Code Section 38-2-1016, after the detail of a new military judge as if no evidence had previously been introduced, unless a verbatim record of the evidence previously introduced or a stipulation thereof is read in court in the presence of the new military judge, the accused, and counsel for both sides.

(Code 1981, §38-2-1029, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 829.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 183.

PART 6 P RETRIAL PROCEDURE

38-2-1030. Charges and specification.

  1. Charges and specifications shall be signed by a person subject to this article under oath before a commissioned officer authorized by Code Section 38-2-1136 to administer oaths and shall state:
    1. That the signer has personal knowledge of, or has investigated, the matters set forth therein; and
    2. That the same are true in fact to the best of the signer's knowledge and belief.
  2. Upon the preferring of charges, the convening authority shall take immediate steps to determine what disposition should be made thereof in the interest of justice and discipline, and the person accused shall be informed of the charges as soon as practicable.
  3. The preferring of charges and findings and sentence of a general court-martial or special court-martial, or other disposition of the charges of the general court-martial or special court-martial, shall be reported to the Georgia Crime Information Center. The Governor shall prescribe by regulations issued pursuant to Part 1 of Article 2 of this chapter the means, manner, and methods of such reporting to the Georgia Crime Information Center.

(Code 1981, §38-2-1030, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 830.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 208.

38-2-1031. Compulsory self-incrimination prohibited.

  1. No person subject to this article shall compel any person to incriminate himself or herself or to answer any question the answer to which may tend to incriminate him or her.
  2. No person subject to this article shall interrogate or request any statement from an accused or a person suspected of an offense without first informing him or her of the nature of the accusation and advising him or her that he or she does not have to make any statement regarding the offense of which he or she is accused or suspected and that any statement made by him or her may be used as evidence against him or her in a trial by court-martial.
  3. No person subject to this article shall compel any person to make a statement or produce evidence before any military court if the statement or evidence is not material to the issue and may tend to degrade him or her.
  4. No statement obtained from any person in violation of this article or through the use of coercion, unlawful influence, or unlawful inducement shall be received in evidence against him or her in a trial by court-martial.

(Code 1981, §38-2-1031, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

Cross references.

- Rights of accused, U.S. Const., amend. 5 and Ga. Const., 1983, Art. I, Sec. I, Para. XVI.

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 831.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 185.

ALR.

- Coercive conduct by private person as affecting admissibility of confession under state statutes or constitutional provisions - post-Connelly cases, 48 A.L.R.5th 555.

38-2-1032. Investigation; cross-examination; effect of failure to perform.

  1. No charge or specification shall be referred to a general court-martial for trial until a thorough and impartial investigation of all the matters set forth therein has been made unless such investigation has been waived in writing by the accused after consultation with his or her defense counsel. Such investigation shall include inquiry as to the truth of the matter set forth in the charges, consideration of the form of charges, and a recommendation as to the disposition which should be made of the case in the interest of justice and discipline.
  2. The accused shall be advised of the charges against him or her and of the right to be represented at the investigation provided for by subsection (a) of this Code section by counsel. The accused has the right to be represented at such investigation as provided in Code Section 38-2-1038 and in regulations prescribed under that Code section. At such investigation, full opportunity shall be given to the accused to cross-examine witnesses against him or her, if they are available, and to present anything relevant he or she may desire in his or her own behalf, either in defense or mitigation, and the investigating officer shall examine available relevant witnesses requested by the accused. If the charges are forwarded after the investigation, they shall be accompanied by a statement of the substance of the testimony taken on both sides and a copy thereof shall be given to the accused.
  3. If an investigation of the subject matter of an offense has been conducted before the accused is charged with the offense, and if the accused was present at the investigation and afforded the opportunities for representation, cross-examination, and presentation prescribed in subsection (b) of this Code section, no further investigation of that charge shall be necessary under this Code section unless it is demanded by the accused after he or she is informed of the charge. A demand for further investigation shall entitle the accused to recall witnesses for further cross-examination and to offer any new relevant evidence in the accused's own behalf.
  4. If evidence adduced in an investigation under this Code section indicates that the accused committed an uncharged offense, the investigating officer may investigate the subject matter of that offense without the accused having first been charged with the offense if the accused is:
    1. Present at the investigation;
    2. Informed of the nature of each uncharged offense investigated; and
    3. Afforded the opportunities for representation,cross- examination, and presentation prescribed in subsection (b) of this Code section.
  5. The requirements of this Code section shall be binding on all persons administering this article, but failure to follow them shall not constitute jurisdictional error.

(Code 1981, §38-2-1032, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 832.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, §§ 209, 212.

38-2-1033. Forwarding of charges.

When a person is held for trial by general court-martial, the commanding officer shall, within three days after the accused is ordered into arrest or confinement, forward the charges, together with the investigation and allied papers, to the person exercising general court-martial jurisdiction.

(Code 1981, §38-2-1033, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 833.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 208.

38-2-1034. Advice of staff judge advocate and reference for trial; corrections.

  1. Before directing the trial of any charge by general or special court-martial, the convening authority shall refer it to the staff judge advocate of the service of the accused for consideration and advice. The convening authority shall not refer a specification under a charge to a general or special court-martial for trial unless the convening authority has been advised in writing by the staff judge advocate of the service of the accused that:
    1. The specification alleges an offense under this article;
    2. The specification is warranted by the evidence indicated in the report of investigation as provided for under Code Section 38-2-1032, if there is such a report; and
    3. A court-martial would have jurisdiction over the accused and the offense.
  2. The advice of the staff judge advocate under subsection (a) of this Code section with respect to a specification under a charge shall include a written and signed statement by the staff judge advocate:
    1. Expressing conclusions with respect to each matter set forth in subsection (a) of this Code section; and
    2. Recommending action that the convening authority take regarding the specification.

      If the specification is referred for trial, the recommendation of the staff judge advocate shall accompany the specification.

  3. If the charges or specifications are not formally correct or do not conform to the substance of the evidence contained in the report of the investigating officer, formal corrections, and such changes in the charges and specifications as are needed to make them conform to the evidence, may be made.

(Code 1981, §38-2-1034, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 834.

38-2-1035. Service of copy of charges; time period before trial.

The trial counsel shall serve or cause to be served upon the accused a copy of the charges. No person shall, against his or her objection, be brought to trial before a general court-martial case within a period of five days after the service of charges upon him or her, or before a special court-martial case within a period of three days after the service of charges upon him or her.

(Code 1981, §38-2-1035, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 835.

PART 7 T RIAL PROCEDURES

38-2-1036. Governor may prescribe rules and regulations.

Pretrial, trial, and post-trial procedures, including, but not limited to, modes of proof, for courts-martial cases arising under this article and for courts of inquiry shall be prescribed by the Governor, or the adjutant general by delegation of the Governor, by regulations issued pursuant to Part 1 of Article 2 of this chapter, or as otherwise provided by law, which shall apply the principles of law generally recognized in military criminal cases in the courts of the armed forces but which may not be contrary to or inconsistent with this article.

(Code 1981, §38-2-1036, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 836.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 206.

38-2-1037. Unlawfully influencing action of court.

  1. No authority convening a general, special, or summary court-martial nor any other commanding officer or officer serving on the staff thereof may censure, reprimand, or admonish such court or any member, the military judge, counsel, or witness thereof with respect to the findings or sentence adjudged by the court or with respect to any other exercise of its or his or her functions in the conduct of the proceedings. No person subject to this article shall attempt to coerce or, by any unauthorized means, influence the action of a court-martial or court of inquiry or any member thereof in reaching the findings or sentence in any case or the action of any convening, approving, or reviewing authority with respect to their judicial acts.
  2. Subsection (a) of this Code section shall not apply with respect to:
    1. General instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of courts-martial; or
    2. Statements and instructions given in open court by the military judge, summary court-martial officer, or counsel.
  3. In the preparation of an effectiveness, fitness, or efficiency report, or any other report or document used in whole or in part for the purpose of determining whether a member of the organized militia is qualified to be advanced in grade, of determining the assignment or transfer of a member of the organized militia, or of determining whether a member of the organized militia should be retained on active status, no person subject to this article shall, in preparing any such report:
    1. Consider or evaluate the performance of duty of any such member as a member of a court-martial or witness therein; or
    2. Give a less favorable rating or evaluation of any counsel of the accused because of zealous representation before a court-martial.

(Code 1981, §38-2-1037, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 837.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 185.

38-2-1038. Trial counsel.

  1. The trial counsel of a general or special court-martial shall be a member in good standing of the State Bar of Georgia and shall prosecute in the name of this state and shall, under the direction of the court, prepare the record of the proceedings.
    1. The accused shall have the right to be represented in defense before a general or special court-martial or at an investigation under Code Section 38-2-1032 as provided for in this subsection.
    2. The accused may be represented by civilian counsel at the provision and expense of the accused.
    3. Except as otherwise provided in this Code section, the accused shall be represented by:
      1. Military counsel as provided for under Code Section 38-2-1027; or
      2. Military counsel of the accused's own selection if such counsel is reasonably available as determined under paragraph (7) of this subsection.
    4. If the accused is represented by civilian counsel, military counsel detailed or selected under paragraph (3) of this subsection shall act as associate counsel if requested in writing by the accused; provided, however, that if no such request in writing is made, military counsel detailed under paragraph (3) of this subsection shall be excused.
    5. Except as provided under paragraph (6) of this subsection, if the accused is represented by military counsel of his or her own selection under subparagraph (B) of paragraph (3) of this subsection, any military counsel detailed under subparagraph (A) of paragraph (3) of this subsection shall be excused.
    6. The accused shall not be entitled to be represented by more than one military counsel; provided, however, that the person authorized under regulations prescribed under Code Section 38-2-1027 to detail counsel, in such person's sole discretion:
      1. May detail additional military counsel as assistant defense counsel; and
      2. If the accused is represented by military counsel of the accused's own selection under subparagraph (B) of paragraph (3) of this subsection, may approve a request from the accused that military counsel detailed under subparagraph (A) of paragraph (3) of this subsection act as associate defense counsel.
    7. The staff judge advocate of the same force of the accused shall determine whether the military counsel selected by an accused is reasonably available.
  2. In any court-martial proceeding resulting in a conviction, the defense counsel may:
    1. Forward for attachment to the record of proceedings a brief of such matters as counsel determines should be considered in behalf of the accused on review, including any objection to the contents of the record which such counsel considers appropriate;
    2. Assist the accused in the submission of any matter under Code Section 38-2-1060; and
    3. Take other action as authorized by this article.

(Code 1981, §38-2-1038, enacted by Ga. L. 2015, p. 753, § 1/HB 98; Ga. L. 2016, p. 864, § 38/HB 737.)

The 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, substituted "subparagraph (B) of paragraph (3) of this subsection" for "subparagraph (b)(3)(B) of this Code section" and substituted "subparagraph (A) of paragraph (3) of this subsection" for "subparagraph (b)(3)(A) of this Code section" in paragraph (b)(5) and subparagraph (b)(6)(B).

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 838.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 212.

38-2-1039. Calling court into session without presence of members; purpose.

  1. At any time after the service of charges which have been referred for trial to a court-martial composed of a military judge and members, the military judge shall, subject to Code Section 38-2-1035, call the court into session without the presence of the members for the purpose of:
    1. Hearing and determining motions raising defenses or objections which are capable of determination without trial of the issues raised by a plea of not guilty;
    2. Hearing and ruling upon any matter which may be ruled upon by the military judge under this article, whether or not the matter is appropriate for later consideration or decision by the members of the court;
    3. Holding the arraignment and receiving the pleas of the accused; and
    4. Performing any other procedural function which does not require the presence of the members of the court under this article.
  2. The proceedings as provided for by subsection (a) of this Code section shall be conducted in the presence of the accused, the defense counsel, and the trial counsel and shall be made a part of the record. Such proceedings shall be conducted notwithstanding the number of court members and without regard to Code Section 38-2-1029.
  3. When the members of a court-martial deliberate or vote, only the members shall be present. All other proceedings, including, but not limited to, any other consultation of the members of the court with counsel or the military judge, shall be made a part of the record and shall be in the presence of the accused, the defense counsel, the trial counsel, and the military judge.

(Code 1981, §38-2-1039, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 839.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 206.

38-2-1040. Granting continuance.

The military judge of a court-martial or a summary court-martial officer may, for reasonable cause, grant a continuance to any party for such time and as often as may appear to be just.

(Code 1981, §38-2-1040, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 840.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 206.

ALR.

- Effect of war on litigation pending at the time of its outbreak, 137 A.L.R. 1335; 147 A.L.R. 1298; 148 A.L.R. 1384; 149 A.L.R. 1451; 149 A.L.R. 1452; 150 A.L.R. 1417; 150 A.L.R. 1418; 151 A.L.R. 1453; 152 A.L.R. 1450; 154 A.L.R. 1447.

38-2-1041. Challenges for cause; order of presentation; peremptory challenges.

    1. The military judge and members of a general or special court-martial may be challenged by the accused or the trial counsel for cause stated to the court. The military judge, if one, or the court shall determine the relevancy and validity of challenges for cause and shall not receive a challenge to more than one person at a time. Challenges by the trial counsel shall ordinarily be presented and decided before those by the accused are offered.
    2. If exercise of a challenge for cause reduces the court below the minimum number of members required by Code Section 38-2-1016, all parties shall, notwithstanding Code Section 38-2-1029, either exercise or waive any challenge for cause then apparent against the remaining members of the court before additional members are detailed to the court; provided, however, that peremptory challenges shall not be exercised at such time.
    1. Each accused and the trial counsel are entitled initially to one peremptory challenge of members of the court. The military judge shall not be challenged except for cause.
    2. If exercise of a peremptory challenge reduces the court below the minimum number of members required by Code Section 38-2-1016, the parties shall, notwithstanding Code Section 38-2-1029, either exercise or waive any remaining peremptory challenge, not previously waived, against the remaining members of the court before additional members are detailed to the court.
    3. Whenever additional members are detailed to the court, and after any challenges for cause against such additional members are presented and decided, each accused and the trial counsel are entitled to one peremptory challenge against members not previously subject to peremptory challenge.

(Code 1981, §38-2-1041, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 841.

Law reviews.

- For note, "Toward an Integrated Rule Prohibiting All Race-Based Peremptory Challenges: Some Considerations on Georgia v. McCollum," see 26 Ga. L. Rev. 503 (1992).

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 206.

38-2-1042. Oaths.

  1. Before performing their respective duties, military judges, general and special courts-martial members, trial counsel, defense counsel, reporters, and interpreters shall take an oath or affirmation to perform their duties faithfully. The form of such oath or affirmation, the time and place of the taking thereof, the manner of recording the same, and whether the oath or affirmation shall be taken for all cases in which such duties are to be performed or for a particular case, shall be as prescribed in regulations issued pursuant to Part 1 of Article 2 of this chapter or as provided by law. Such regulations shall provide that an oath or affirmation to perform faithfully the duties as a military judge, trial counsel, or defense counsel may be taken at any time by any judge advocate or other person certified or designated to be qualified or competent for the duty, and if such an oath or affirmation is taken, it need not again be taken at the time the judge advocate or other person is detailed to that duty.
  2. Each witness before a court-martial shall be examined under oath or affirmation.

(Code 1981, §38-2-1042, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 842.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military, and Civil Defense, § 206.

38-2-1043. Statute of limitations.

  1. A person charged with desertion or absence without leave in time of armed conflict or war, whether or not declared, or with aiding the enemy or with mutiny shall be tried and punished at any time without limitation.
  2. Except as otherwise provided in this article, a person charged with any offense shall not be liable to be tried by court-martial or punished under Code Section 38-2-1015 if the offense was committed more than three years before the receipt of sworn charges and specifications by an officer exercising court-martial jurisdiction over the command or before the imposition of punishment under Code Section 38-2-1015.
  3. Periods in which the accused is absent without authority or fleeing from justice shall be excluded in computing the period of limitation prescribed in this Code section.
  4. Periods in which the accused was absent from territory in which this state has the authority to take the accused into custody, or in which such accused is in the custody of civil authorities or in the hands of the enemy, shall be excluded in computing the period of limitation prescribed in this Code section.
    1. If charges or specifications are dismissed as defective or insufficient for any cause and the period of limitation prescribed by this Code section has expired or will expire within 180 days after the date of dismissal of the charges and specifications, trial and punishment under new charges and specifications shall not be barred by the period of limitation prescribed by this Code section if the conditions specified in paragraph (2) of this subsection are met.
    2. The conditions provided for by paragraph (1) of this subsection shall be that the new charges and specifications shall:
      1. Be received by an officer exercising summary court-martial jurisdiction over the command within 180 days after the dismissal of the charges or specifications; and
      2. Allege the same acts or omissions that were alleged in the dismissed charges or specifications or allege acts or omissions that were included in the dismissed charges or specifications.

(Code 1981, §38-2-1043, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

Cross references.

- Limitations on criminal prosecutions generally, T. 17, C. 3.

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 843.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 215.

ALR.

- Burden on state to show that crime was committed within limitation period, 13 A.L.R. 1446.

38-2-1044. Double jeopardy.

  1. No person shall, without his or her consent, be tried a second time for the same offense.
  2. No proceeding in which an accused has been found guilty by a court-martial upon any charge or specification shall be a trial in the sense of this Code section until the finding of guilty has become final after review of the case has been fully completed.
  3. A proceeding which, after the introduction of evidence but before a finding, is dismissed or terminated by the convening authority or on motion of the prosecution for failure of available evidence or witnesses without any fault of the accused shall be a trial in the sense of this Code section.

(Code 1981, §38-2-1044, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

Cross references.

- Rights of accused in criminal proceedings, U.S. Const., amend. 5 and Ga. Const., 1983, Art. I, Sec. I, Para. XVIII.

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 844.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, §§ 210, 211.

38-2-1045. Pleas of accused.

  1. If an accused after arraignment makes an irregular pleading, or after a plea of guilty sets up matter inconsistent with the plea, or if it appears that the accused has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect or if the accused fails or refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed as though the accused had pleaded not guilty.
  2. With respect to any charge or specification to which a plea of guilty has been made by the accused and accepted by the military judge or by a court-martial without a military judge, a finding of guilty of the charge or specification may be entered immediately without vote. Such finding shall constitute the finding of the court unless the plea of guilty is withdrawn prior to announcement of the sentence, in which event, the proceedings shall continue as though the accused had pleaded not guilty.

(Code 1981, §38-2-1045, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 845.

38-2-1046. Opportunity to obtain witnesses and other evidence.

The trial counsel, the defense counsel, and the summary court-martial officer shall have equal opportunity to obtain witnesses and other evidence as prescribed by regulations issued pursuant to Part 1 of Article 2 of this chapter.

(Code 1981, §38-2-1046, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 846.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 214.

38-2-1046.1. Issuance of process and mandates; who may issue; execution.

  1. Military courts are empowered to issue all process and mandates necessary and proper to carry into full effect the powers vested in the courts. The courts shall have power to issue subpoenas for the attendance of witnesses and subpoenas for the production of documentary evidence and to enforce by attachment attendance of witnesses and production of books, records, and other documentary evidence.
  2. Such process and mandates may be issued by military judges, summary courts-martial, provost courts, the president of other military courts, and boards of officers; may be directed to and may be executed by any sheriff, the marshals of the military court, or any peace officer; and shall be in such form as may be prescribed by regulations issued pursuant to Part 1 of Article 2 of this chapter.
  3. It shall be the duty of all officers to whom process or mandate may be so directed to execute the same and make return of their acts thereunder according to the requirements of the same. Except as otherwise specifically provided in this article, no such officer shall demand or require payment of any fee or charge of any nature for receiving, executing, or returning any process or mandate or for any services in connection therewith.

(Code 1981, §38-2-1046.1, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

38-2-1047. Refusal to appear or testify; penalty.

  1. Any person not subject to this article who:
    1. Has been duly subpoenaed to appear as a witness or to produce books and records before a court-martial or court of inquiry or before any military or civil officer designated to take a deposition to be read in evidence before such court;
    2. Has been duly paid or tendered the fees and mileage of a witness at the rates allowed to witnesses attending a criminal court of this state; and
    3. Willfully neglects or refuses to appear, or refuses to qualify as a witness or to testify or to produce any evidence which that person may have been legally subpoenaed to produce

      shall be punished by the military court in the same manner as a criminal court of this state.

  2. The fees and mileage of witnesses shall be advanced or paid out of the appropriations for the compensation of witnesses or other appropriate funds.

(Code 1981, §38-2-1047, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 847.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 214.

38-2-1048. Contempt; penalty.

  1. A military judge may punish for contempt any person who uses any menacing word, sign, or gesture in his or her presence, or who disturbs the proceedings of the military court by any riot or disorder.
  2. A person subject to this article may be punished for contempt by confinement not to exceed 30 days or a fine of $1,000.00, or both.
  3. A person not subject to this article may be punished for contempt by a military court in the same manner as a criminal court of this state.

(Code 1981, §38-2-1048, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 848.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 214.

38-2-1049. Depositions.

  1. At any time after charges have been signed as provided for in Code Section 38-2-1030, the military judge or summary court-martial officer, with approval of the state judge advocate, may allow a party to take oral or written depositions for good cause.
  2. The party at whose instance a deposition is to be taken shall give to every other party reasonable written notice of the time and place for taking the deposition, and such party may attend and participate in the deposition.
  3. Depositions shall be taken before and authenticated by any military or civil officer authorized by the laws of this state or by the laws of the place where the deposition is taken to administer oaths.
  4. A duly authenticated deposition taken upon reasonable notice to the other parties, so far as otherwise admissible under the rules of evidence, may be read in evidence or, in the case of audiotape, videotape, digital image or file, or similar material, may be played in evidence before any military court, if it appears that:
    1. The witness resides or is beyond another state in which the court is ordered to sit, or beyond 100 miles from the place of trial or hearing;
    2. The witness, by reason of death, age, sickness, bodily infirmity, imprisonment, military necessity, nonamenability to process, or other reasonable cause, is unable or refuses to appear and testify in person at the place of trial or hearing; or
    3. The present whereabouts of the witness are unknown.

(Code 1981, §38-2-1049, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 849.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 206.

38-2-1050. Admissibility of records of courts of inquiry.

  1. In any case not extending to the dismissal of a commissioned officer, the sworn testimony, contained in the duly authenticated record of proceedings of a court of inquiry, of a person whose oral testimony cannot be obtained may, if otherwise admissible under the rules of evidence, be read in evidence by any party before a court-martial if the accused was a party before the court of inquiry and if the same issue was involved or if the accused consents to the introduction of such evidence.
  2. In any case extending to the dismissal of a commissioned officer, the sworn testimony, contained in the duly authenticated record of proceedings of a court of inquiry, of a person whose oral testimony cannot be obtained may, if otherwise admissible under the rules of evidence, be read in evidence only by the defense.
  3. Such testimony as provided for in subsections (a) and (b) of this Code section may be read in evidence before a court of inquiry in like manner as provided for in subsections (a) and (b) of this Code section.

(Code 1981, §38-2-1050, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 850.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 214.

38-2-1050.1. Defense of mental disease or defect.

  1. It shall be an affirmative defense in a trial by court-martial that, at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his or her acts. Mental disease or defect shall not otherwise constitute a defense.
  2. The accused has the burden of proving the defense as provided for by subsection (a) of this Code section by clear and convincing evidence.
  3. Whenever lack of mental responsibility of the accused with respect to an offense is properly at issue, the military judge shall follow the procedures set forth in Code Section 17-7-131.

(Code 1981, §38-2-1050.1, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

38-2-1051. Voting, rulings, and charge.

  1. Voting by members of a general or special court-martial on the findings and on the sentence shall be by secret written ballot. The junior member of the court shall count the votes. The count shall be checked by the president who shall forthwith announce the result of the ballot to the members of the court.
  2. The military judge shall rule upon all questions of law and all interlocutory questions arising during the proceedings. Any such ruling made by the military judge upon any question of law or any interlocutory question other than the factual issue of mental responsibility of the accused shall be final and shall constitute the ruling of the court; provided, however, that the military judge may change the ruling at any time during the trial. Unless the ruling is final, if any member objects thereto, the court shall be cleared and closed and the question decided by a voice vote as provided in Code Section 38-2-1052, beginning with the member junior in rank.
  3. Before a vote is taken on the findings, the military judge shall, in the presence of the accused and counsel, instruct the members of the court as to the elements of the offense and charge them that:
    1. The accused must be presumed to be innocent until his or her guilt is established by legal and competent evidence beyond a reasonable doubt;
    2. In the case being considered, if there is a reasonable doubt as to the guilt of the accused, the doubt must be resolved in favor of the accused and the accused must be acquitted;
    3. If there is a reasonable doubt as to the degree of guilt, the finding must be in a lower degree as to which there is no reasonable doubt; and
    4. The burden of proof to establish the guilt of the accused beyond a reasonable doubt is upon the state.
  4. Subsections (a), (b), and (c) of this Code section shall not apply to a court-martial composed of a military judge only. The military judge of such a court-martial shall determine all questions of law and fact arising during the proceedings and, if the accused is convicted, adjudge an appropriate sentence. The military judge of such a court-martial shall make a general finding and shall in addition, on request, find the facts specially. If an opinion or memorandum of decision is filed, it shall be sufficient if the findings of fact appear therein.

(Code 1981, §38-2-1051, enacted by Ga. L. 2015, p. 753, § 1/HB 98; Ga. L. 2017, p. 774, § 38/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "beyond a reasonable doubt;" for "beyond reasonable doubt;" at the end of paragraph (c)(1).

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 851.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 206.

38-2-1052. Number of votes required for conviction.

  1. No person shall be convicted of an offense, except:
    1. As provided in Code Section 38-2-1045;
    2. By the vote of two-thirds of the members;
    3. By a summary court-martial officer; or
    4. If a court-martial is composed of a military judge only, by decision of the military judge.
  2. If two-thirds of the members of a court-martial composed of members do not vote for a conviction, the accused shall be acquitted.
    1. All questions other than the questions provided for under subsections (a) and (b) of this Code section to be decided by the members of a general or special court-martial shall be determined by a majority vote; provided, however, that a determination to reconsider a finding of guilty or to reconsider a sentence, with a view toward decreasing it, shall be made by any lesser vote which indicates that the reconsideration is not opposed by the number of votes required for that finding or sentence.
    2. A tie vote on a challenge shall disqualify the member challenged.
    3. A tie vote on a motion relating to the question of the sanity of the accused shall be a determination against the accused.
    4. A tie vote on a question other than the questions provided for under paragraphs (2) and (3) of this subsection shall be a determination in favor of the accused.

(Code 1981, §38-2-1052, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 852.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, §§ 183, 216.

38-2-1053. Prompt announcement of findings and sentence.

A court-martial shall announce its findings and sentence to the parties as soon as determined.

(Code 1981, §38-2-1053, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 853.

38-2-1054. Trial record; contents; authentication; accused entitled to copy.

  1. Each general and special court-martial shall keep a separate record of the proceedings in each case brought before it, and the record shall be authenticated by the signature of the military judge. If the record cannot be authenticated by the military judge by reason of his or her death, disability, or absence, it shall be authenticated by the signature of the trial counsel or by that of a member, if the trial counsel is unable to authenticate it by reason of his or her death, disability, or absence. In a court-martial consisting of only a military judge, the record shall be authenticated by the court reporter under the same conditions which would impose such a duty on a member under this subsection.
    1. A complete verbatim record of the proceedings and testimony shall be prepared in each general and special court-martial case resulting in a conviction.
    2. In all court-martial cases other than as provided for by paragraph (1) of this subsection, the record shall contain such matters as may be prescribed by regulations issued pursuant to Part 1 of Article 2 of this chapter.
  2. Each summary court-martial shall keep a separate record of the proceedings in each case, and the record shall be authenticated in the manner as may be prescribed by regulations issued pursuant to Part 1 of Article 2 of this chapter.
  3. A copy of the record of the proceedings of each general and special court-martial shall be given to the accused as soon as it is authenticated.

(Code 1981, §38-2-1054, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

PART 8 S ENTENCES

38-2-1055. Cruel and unusual punishments prohibited.

Punishment by flogging or by branding, marking, or tattooing on the body or any other cruel or unusual punishment shall not be adjudged by a court-martial or inflicted upon any person subject to this article. The use of irons, single or double, except for the purpose of safe custody, is prohibited.

(Code 1981, §38-2-1055, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

Cross references.

- Cruel and unusual punishment, U.S. Const., amend. 8 and Ga. Const., 1983, Art. I, Sec. I, Para. XIV.

Prohibition against whipping as punishment for crime, Ga. Const. 1983, Art. I, Sec. I, Para. XVIII.

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 855.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 218.

38-2-1056. Maximum sentencing limits.

  1. The punishment which a court-martial may direct for an offense shall not exceed such limits as prescribed by this article, but in no instance shall a sentence exceed more than ten years nor shall a sentence of death be adjudged. A conviction by general court-martial of any offense for which an accused may receive a sentence of confinement for more than one year shall be a felony offense. Except for convictions by a summary court-martial, all other convictions shall be misdemeanors. Any conviction by a summary court-martial shall not be a criminal conviction.
  2. The limits of punishment for violations of this article prescribed in subsection (a) of this Code section shall be the lesser of the sentences prescribed by the manual for courts-martial of the United States in effect on January 1, 2015, if such manual contains the offense, and any regulations or manual for courts-martial adopted in this state pursuant to Code Section 38-2-1036, but in no instance shall any punishment exceed that authorized by this article.

(Code 1981, §38-2-1056, enacted by Ga. L. 2015, p. 753, § 1/HB 98; Ga. L. 2017, p. 774, § 38/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "prescribed in subsection (a) of this Code section" for "prescribed herein" near the beginning of subsection (b).

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 856.

38-2-1057. Effective date of sentences.

  1. Whenever a sentence of a court-martial as lawfully adjudged and approved includes a forfeiture of pay or allowances in addition to confinement not suspended, the forfeiture shall apply to pay or allowances becoming due on or after the date the sentence is approved by the convening authority. No forfeiture shall extend to any pay or allowances accrued before that date.
  2. Any period of confinement included in a sentence of a court-martial shall begin to run from the date the sentence is adjudged by the court-martial, but periods during which the sentence to confinement is suspended or deferred shall be excluded in computing the service of the term of confinement.
  3. All sentences of courts-martial, except as provided for by subsections (a) and (b) of this Code section, shall be effective on the date ordered executed.

(Code 1981, §38-2-1057, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 857.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, §§ 218, 220.

38-2-1057.1. Deferment of sentence.

  1. On application by an accused who is under sentence to confinement that has not been ordered executed, the convening authority or, if the accused is no longer under that person's jurisdiction, the person exercising general court-martial jurisdiction over the command to which the accused is currently assigned may, in that person's sole discretion, defer service of the sentence to confinement. Such deferment shall terminate when the sentence is ordered executed. Such deferment may be rescinded at any time by the person who granted it or, if the accused is no longer under that person's jurisdiction, by the person exercising general court-martial jurisdiction over the command to which the accused is currently assigned.
    1. In any case in which a court-martial sentences an accused as provided for in paragraph (2) of this subsection to confinement, the convening authority shall defer the service of the sentence to confinement, without the consent of the accused, until after the accused has been permanently released to the organized militia by another state, the United States, or a foreign country referred to in that paragraph.
    2. Paragraph (1) of this subsection shall apply to a person subject to this article who:
      1. While in the custody of another state, the United States, or a foreign country is temporarily returned by such state, the United States, or a foreign country to the organized militia for trial by court-martial; and
      2. After the court-martial, is returned to such state, the United States, or a foreign country under the authority of a mutual agreement or treaty, as the case may be.
  2. In any case in which a court-martial sentences an accused to confinement and the sentence to confinement has been ordered executed, but in which review of the case under Code Section 38-2-1067 is pending, the adjutant general may defer further service of the sentence to confinement while that review is pending.

(Code 1981, §38-2-1057.1, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

38-2-1058. Execution of confinement; discipline while in civil jails; hard labor; civil confinement according to law.

  1. A sentence of confinement adjudged by a court-martial, whether or not the sentence includes discharge or dismissal, and whether or not the discharge or dismissal has been executed, shall be carried into execution by confinement in any place authorized by this article. Persons so confined shall be subject to the same discipline and treatment as persons regularly confined or committed to that place of confinement.
  2. The omission of hard labor as a sentence authorized under this article shall not deprive a confinement facility from employing it, if it otherwise is within the authority of that facility to do so.
  3. No place of confinement shall require payment of any fee or charge for so receiving or confining a person except as otherwise provided by law.

(Code 1981, §38-2-1058, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

Cross references.

- Conditions of detention of prison inmates generally, § 42-5-50 et seq.

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 858.

38-2-1058.1. Reduction of pay grade.

  1. A court-martial sentence of an enlisted member in a pay grade above E-1, as approved by the convening authority, that includes a dishonorable or bad conduct discharge or confinement shall reduce that member to pay grade E-1, effective on the date of that approval.
  2. If the sentence of an enlisted member who is reduced in pay grade under subsection (a) of this Code section is set aside or disapproved, or, as finally approved, does not include any punishment named in paragraphs (1) and (2) of subsection (a) of this Code section, the rights and privileges of which the person was deprived because of that reduction shall be restored, including, but not limited to, pay and allowances.

(Code 1981, §38-2-1058.1, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

38-2-1058.2. Forfeiture of pay and allowances.

    1. A court-martial sentence as provided for in paragraph (2) of this subsection shall result in the forfeiture of pay, or of pay and allowances, due that member during any period of confinement or parole. Such forfeiture pursuant to this Code section shall take effect on the date determined under Code Section 38-2-1057 and may be deferred as provided by that Code section. The pay and allowances forfeited shall be all pay and allowances due that member during such period.
    2. A sentence covered by this subsection shall be any sentence that includes:
      1. Confinement for more than six months; or
      2. Confinement for six months or less and a dishonorable or bad conduct discharge or dismissal.
  1. In a case involving an accused who has dependents, the convening authority or other person acting under Code Section 38-2-1060 may waive any or all of the forfeitures of pay and allowances required by subsection (a) of this Code section for a period not to exceed six months. Any amount of pay or allowances that, except for a waiver under this subsection, would be forfeited shall be paid, as the convening authority or other person taking action directs, to the dependents of the accused.
  2. If the sentence of a member who forfeits pay and allowances under subsection (a) of this Code section is set aside or disapproved or, as finally approved, does not provide for a punishment referred to in paragraph (2) of subsection (a) of this Code section, the member shall be paid the pay and allowances which the member would have been paid, except for the forfeiture, for the period during which the forfeiture was in effect.

(Code 1981, §38-2-1058.2, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

PART 9 R EVIEW OF COURTS-MARTIAL

38-2-1059. Effect of error of law on appeal; material prejudice; lesser included offense.

  1. A finding or sentence of a court-martial shall not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.
  2. Any reviewing authority with the power to approve or affirm a finding of guilty may approve or affirm, instead, so much of the finding as includes a lesser included offense.

(Code 1981, §38-2-1059, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 859.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 222.

ALR.

- Review by civil courts of court-martial convictions, 15 A.L.R.2d 387.

Review by federal civil courts of court-martial convictions - modern cases, 95 A.L.R. Fed. 472.

38-2-1060. Report of findings and sentence; submission of matters for consideration to convening authority; record of trial; modification of findings and sentence; recommendation of staff judge advocate; proceeding in revision; rehearing.

  1. The findings and sentence of a court-martial shall be reported promptly to the convening authority after the announcement of the sentence.
    1. The accused may submit to the convening authority matters for consideration by the convening authority with respect to the findings and the sentence. Any such submission shall be in writing. Except in a summary court-martial case, such a submission shall be made within 30 days after the accused has been given an authenticated record of the trial and, if applicable, the recommendation of the staff judge advocate of the service of the accused under subsection (d) of this Code section. In a summary court-martial case, such a submission shall be made within 30 days after the sentence is announced.
    2. If the accused shows that additional time is required for the accused to submit such matters as provided for in paragraph (1) of this subsection, the convening authority or other person taking action under this Code section, for good cause, may extend the applicable period under paragraph (1) of this subsection for not more than an additional 60 days.
    3. In a summary court-martial case, the accused shall be promptly provided a copy of the record of trial for use in preparing the submission as provided for by paragraph (1) of this subsection.
    4. The accused may waive the right to make a submission to the convening authority as provided for by paragraph (1) of this subsection. Such a waiver shall be made in writing and may not be revoked. For the purposes of paragraph (2) of subsection (c) of this Code section, the time within which the accused may make a submission under this subsection shall be deemed to have expired upon the submission of such a waiver to the convening authority.
    1. The authority under this Code section to modify the findings and sentence of a court-martial is a matter of command prerogative involving the sole discretion of the convening authority. If it is impractical for the convening authority to act, the convening authority shall forward the case to a person exercising general court-martial jurisdiction who may take action under this Code section.
    2. Action on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this Code section. Such action may be taken only after consideration of any matters submitted by the accused under subsection (b) of this Code section or after the time for submitting such matters expires, whichever is earlier. The convening authority or other person taking such action, in that person's sole discretion, may approve, disapprove, commute, or suspend the sentence in whole or in part.
    3. Action on the findings of a court-martial by the convening authority or other person acting on the sentence shall not be required; provided, however, that such person, in the person's sole discretion may:
      1. Dismiss any charge or specification by setting aside a finding of guilty thereto; or
      2. Change a finding of guilty to a charge or specification to a finding of guilty to an offense that is a lesser included offense of the offense stated in the charge or specification.
  2. Before acting under this Code section on any general or special court-martial case in which there is a finding of guilt, the convening authority or other person taking action under this Code section shall obtain and consider the written recommendation of the staff judge advocate of the service of the accused. The convening authority or other person taking action under this Code section shall refer the record of trial to the staff judge advocate, and the staff judge advocate shall use such record in the preparation of the recommendation. The recommendation of the staff judge advocate shall include such matters as may be prescribed by regulations issued pursuant to Part 1 of Article 2 of this chapter and shall be served on the accused, who may submit any matter as provided for by subsection (b) of this Code section. Failure to object in the response to the recommendation or to any matter attached to the recommendation shall waive the right to object thereto.
    1. The convening authority or other person taking action under this Code section, in the person's sole discretion, may order a proceeding in revision or a rehearing.
    2. A proceeding in revision as provided for by paragraph (1) of this subsection may be ordered if there is an apparent error or omission in the record or if the record shows improper or inconsistent action by a court-martial with respect to the findings or sentence that can be rectified without material prejudice to the substantial rights of the accused. In no case, however, may a proceeding in revision:
      1. Reconsider a finding of not guilty of any specification or a ruling which amounts to a finding of not guilty;
      2. Reconsider a finding of not guilty of any charge, unless there has been a finding of guilty under a specification laid under that charge, which sufficiently alleges a violation of this article; or
      3. Increase the severity of the sentence unless the sentence prescribed for the offense is mandatory.
    3. A rehearing may be ordered by the convening authority or other person taking action under this Code section if that person disapproves the findings and sentence and states the reasons for disapproval of the findings. If such person disapproves of the findings and sentence and does not order a rehearing, that person shall dismiss the charges. A rehearing as to the findings shall not be ordered where there is a lack of sufficient evidence in the record to support such findings. A rehearing as to the sentence shall be ordered if the convening authority or other person taking action under this subsection disapproves the sentence.

(Code 1981, §38-2-1060, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 860.

For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 861.

For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 862.

For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 863.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 222.

53A Am. Jur. 2d, Military and Civil Defense, § 222.

53A Am. Jur. 2d, Military and Civil Defense, § 222.

53A Am. Jur. 2d, Military, and Civil Defense, §§ 227, 229.

38-2-1061. Withdrawal of appeal.

  1. In each case subject to appellate review under this article, the accused may file with the convening authority a statement expressly withdrawing the right of the accused to such appeal. Such a withdrawal shall be signed by both the accused and his or her defense counsel and shall be filed in accordance with appellate procedures as provided by law.
  2. The accused may withdraw an appeal at any time in accordance with appellate procedures as provided by law.

(Code 1981, §38-2-1061, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

38-2-1062. State may appeal certain rulings.

    1. In a trial by court-martial in which a punitive discharge may be adjudged, the state may appeal the following, other than a finding of not guilty with respect to the charge or specification by the members of the court-martial or by a judge in a bench trial so long as it is not made in reconsideration:
      1. An order or ruling of the military judge which terminates the proceedings with respect to a charge or specification;
      2. An order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding;
      3. An order or ruling which directs the disclosure of classified information;
      4. An order or ruling which imposes sanctions for nondisclosure of classified information;
      5. A refusal of the military judge to issue a protective order sought by the state to prevent the disclosure of classified information; and
      6. A refusal by the military judge to enforce an order described in subparagraph (E) of this paragraph that has previously been issued by appropriate authority.
    2. An appeal of an order or ruling may not be taken unless the trial counsel provides the military judge with written notice of appeal from the order or ruling within 72 hours of the order or ruling. Such notice shall include a certification by the trial counsel that the appeal is not taken for the purpose of delay and, if the order or ruling appealed is one which excludes evidence, that the evidence excluded is substantial proof of a fact material in the proceeding.
    3. An appeal under this Code section shall be diligently prosecuted as provided by law.
  1. An appeal under this Code section shall be forwarded to the court prescribed in Code Section 38-2-1067. In ruling on an appeal under this Code section, such court may act only with respect to matters of law.
  2. Any period of delay resulting from an appeal under this Code section shall be excluded in deciding any issue regarding denial of a speedy trial unless an appropriate authority determines that the appeal was filed solely for the purpose of delay with the knowledge that it was totally frivolous and without merit.

(Code 1981, §38-2-1062, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

38-2-1063. Rehearings; grounds; members of court; effect on sentence.

Each rehearing under this article shall take place before a court-martial composed of members who were not members of the court-martial which first heard the case. Upon a rehearing, the accused may not be tried for any offense of which the accused was found not guilty by the first court-martial, and no sentence in excess of or more severe than the original sentence may be approved, unless the sentence is based upon a finding of guilty of an offense not considered upon the merits in the original proceedings or unless the sentence prescribed for the offense is mandatory. If the sentence approved after the first court-martial was in accordance with a pretrial agreement and the accused at the rehearing changes a plea with respect to the charges or specifications upon which the pretrial agreement was based, or otherwise does not comply with the pretrial agreement, the approved sentence as to those charges or specifications may include any punishment not in excess of that lawfully adjudged at the first court-martial.

(Code 1981, §38-2-1063, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

38-2-1064. Guilty findings reviewed by state judge advocate.

  1. Each general and special court-martial case in which there has been a finding of guilty shall be reviewed by the state judge advocate or his or her designee who shall be a judge advocate. The state judge advocate shall not review a case under this subsection if that person has acted in the same case as an accuser, investigating officer, member of the court, military judge, or counsel, or has otherwise acted on behalf of the prosecution or defense; the state judge advocate shall assign review of such case to a designee who shall not have acted in the same case as an accuser, investigating officer, member of the court, military judge, or counsel, or has otherwise acted on behalf of the prosecution or defense. Such review of the state judge advocate or his or her designee shall be in writing and shall contain the following:
    1. Conclusions as to whether:
      1. The court had jurisdiction over the accused and the offense;
      2. The charge and specification stated an offense; and
      3. The sentence was within the limits prescribed as a matter of law;
    2. A response to each allegation of error made in writing by the accused; and
    3. If the case is sent for action under subsection (b) of this Code section, a recommendation as to the appropriate action to be taken and an opinion as to whether corrective action is required as a matter of law.
  2. The record of trial and related documents in each case reviewed under subsection (a) of this Code section shall be sent for action to the adjutant general, if:
    1. The judge advocate who reviewed the case recommends corrective action;
    2. The sentence approved under Code Section 38-2-1060 extends to dismissal, a bad conduct or dishonorable discharge, or confinement for more than six months; or
    3. Such action is otherwise required by regulations pursuant to Part 1 of Article 2 of this chapter.
    1. If a record of trial is sent to the adjutant general under subsection (b) of this Code section, the adjutant general may:
      1. Disapprove or approve the findings or sentence, in whole or in part;
      2. Remit, commute, or suspend the sentence in whole or in part;
      3. Except where the evidence was insufficient at the trial to support the findings, order a rehearing on the findings or on the sentence, or both; or
      4. Dismiss the charges.
    2. If a rehearing is ordered by the adjutant general but the convening authority finds a rehearing impracticable, the convening authority shall dismiss the charges.
    3. If the opinion of the state judge advocate, or designee, in the state judge advocate's, or designee's, review under subsection (a) of this Code section is that corrective action is required as a matter of law and if the adjutant general does not take action that is at least as favorable to the accused as that recommended by the state judge advocate, the record of trial and action thereon shall be sent to the Governor for review and action as deemed appropriate.
  3. The state judge advocate, or his or her designee who shall be a judge advocate, may review any case in which there has been a finding of not guilty of all charges and specifications. If the state judge advocate has acted in the same case as an accuser, investigating officer, member of the court, military judge, or counsel or has otherwise acted on behalf of the prosecution or defense, the state judge advocate may assign such case to a designee who has not acted in the same case as an accuser, investigating officer, member of the court, military judge, or counsel or has otherwise acted on behalf of the prosecution or defense and who shall determine whether a review shall be conducted under this subsection. Such review of the state judge advocate or of his or her designee shall be limited to questions of subject matter jurisdiction.
  4. The record of trial and related documents in each case reviewed under subsection (d) of this Code section shall be sent for action to the adjutant general; the adjutant general may:
    1. When subject matter jurisdiction is found to be lacking, void the court-martial ab initio, with or without prejudice to the state, as the adjutant general deems appropriate; or
    2. Return the record of trial and related documents to the state judge advocate or his or her designee for appeal by the state as provided by law.

(Code 1981, §38-2-1064, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 864.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 222.

38-2-1065. Disposition of trial records.

Except as otherwise required by this article, all records of trial and related documents shall be transmitted and disposed of as prescribed by regulations issued pursuant to Part 1 of Article 2 of this chapter.

(Code 1981, §38-2-1065, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

38-2-1066. Reserved.

(Code 1981, §38-2-1066, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

38-2-1067. Court-martial review panel; members; rules and regulations.

    1. There shall be the court-martial review panel which shall hear appeals of decisions of a court-martial.
    2. The Governor shall appoint five persons to serve as judges on the court-martial review panel. Four such judges shall be retired commissioned officers of the organized militia or state military force of another state or of the armed forces of the United States or a reserve component thereof and a member in good standing of the State Bar of Georgia. One such judge shall be a member in good standing of the State Bar of Georgia and shall not be a member, former member, or retired member of the organized militia or state military force of another state or of the armed forces of the United States or a reserve component thereof.
    3. The Governor shall prescribe by regulations issued pursuant to Part 1 of Article 2 of this chapter the convening and administration of the court-martial review panel and the compensation provided to the judges of such panel.
    1. An appeal to the court-martial review panel shall only be made after action on the sentence of a court-martial by the convening authority or by another person authorized to take such action as provided for in Code Section 38-2-1060 or after a decision of the convening authority to deny a petition for a new trial as provided for by Code Section 38-2-1073 or pursuant to Code Section 38-2-1062. Such appeals shall be made within 30 days after such action or decision.
    2. The court-martial review panel shall dispose of each appeal within 90 days of such appeal made thereto. The court-martial review panel shall deliver its decision to the state judge advocate and, within three days, the state judge advocate shall serve a copy of such decision to the accused by statutory overnight delivery. The decision of the court-martial review panel shall be final for purposes of an appeal to the appellate courts of this state on the date that the state judge advocate mails the decision to the accused.
  1. Any party to a proceeding before the court-martial review panel may secure a review of the final decision of the court-martial review panel by appeal in the manner and form provided by law for appeals from the superior courts to the appellate courts of this state.

(Code 1981, §38-2-1067, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

38-2-1068 and 38-2-1069. Reserved.

(Code 1981, §§38-2-1068 and38-2-1069, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

38-2-1070. Appellate government counsel.

  1. The state judge advocate shall detail a judge advocate as appellate government counsel to represent the state in the review or appeal of cases provided for in Code Section 38-2-1067 and before any federal court when requested to do so by the attorney general. Appellate government counsel shall be a member in good standing of the bar of the highest court of this state.
  2. Upon an appeal by the state, the accused shall have the right to be represented by detailed military counsel before any reviewing authority and before any appellate court.
  3. Upon an appeal by an accused, the accused shall have the right to be represented by military counsel before any reviewing authority.
  4. Upon the request of an accused entitled to be so represented, the senior force judge advocate shall appoint a judge advocate to represent the accused in the review or appeal of cases specified in subsections (b) and (c) of this Code section.
  5. An accused may be represented by civilian appellate counsel at no expense to the state.

(Code 1981, §38-2-1070, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

RESEARCH REFERENCES

ALR.

- Review by civil courts of court-martial convictions, 15 A.L.R.2d 387.

Review by federal civil courts of court-martial convictions - modern cases, 95 A.L.R. Fed. 472.

38-2-1071. Execution of sentence extending to dismissal or dishonorable or bad conduct discharge.

  1. If the sentence of the court-martial extends to dismissal or a dishonorable or bad conduct discharge and if the right of the accused to appellate review is not waived and an appeal is not withdrawn under Code Section 38-2-1061, that part of the sentence extending to dismissal or a dishonorable or bad conduct discharge shall not be executed until there is a final judgment as to the legality of the proceedings. A judgment as to the legality of the proceedings shall be final in such cases when review is completed by an appellate court as provided for in Code Section 38-2-1067 and is deemed final by the law of this state.
  2. If the sentence of the court-martial extends to dismissal or a dishonorable or bad conduct discharge and if the right of the accused to appellate review is waived or an appeal is withdrawn under Code Section 38-2-1061, that part of the sentence extending to dismissal or a dishonorable or bad conduct discharge shall not be executed until review of the case by the state judge advocate and any action on that review under Code Section 38-2-1064 is completed. Any other part of a court-martial sentence may be ordered executed by the convening authority or other person acting on the case under Code Section 38-2-1060 when so approved under that Code section.
  3. The convening authority may suspend the execution of any sentence or part thereof.

(Code 1981, §38-2-1071, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 871.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 226.

38-2-1072. Vacation of suspension of sentence; hearing; legal representation by military counsel; record of hearing.

  1. Before the vacation of the suspension of a special court-martial sentence, which as approved includes a bad conduct discharge, or of any general court-martial sentence, the officer having special court-martial jurisdiction over the probationer shall hold a hearing on an alleged violation of probation. The probationer shall be represented at the hearing by military counsel if the probationer so desires.
  2. The record of the hearing and the recommendation of the officer having special court-martial jurisdiction shall be sent for action to the officer exercising general court-martial jurisdiction over the probationer. If the officer vacates the suspension, any unexecuted part of the sentence, except a dismissal, shall be executed subject to applicable restrictions in this article.
  3. The suspension of any other sentence may be vacated by any authority competent to convene for the command in which the accused is serving or assigned a court of the kind that imposed the sentence.

(Code 1981, §38-2-1072, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 872.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 226.

38-2-1073. Petition for new trial; time period; grounds.

  1. At any time within five years after approval by the convening authority of a court-martial sentence, the accused may petition the convening authority for a new trial. Some good reason, including but not limited to newly discovered evidence or fraud on the court-martial, must be shown as to why the petition should be granted.
  2. The decision of the convening authority provided for under subsection (a) of this Code section shall be appealable as provided for under Code Section 38-2-1067.

(Code 1981, §38-2-1073, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 873.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, §§ 228, 229.

38-2-1074. Remission or suspension of sentence; modification of type of discharge by Governor.

  1. Any authority competent to convene, for the command in which the accused is serving or assigned, a court of the kind that imposed the sentence may remit or suspend any part or amount of the unexecuted part of any sentence, including, but not limited to, all uncollected forfeitures, other than a sentence approved by the Governor.
  2. The Governor may, for good cause, substitute an administrative form of discharge for a discharge or dismissal executed in accordance with the sentence of a court-martial.

(Code 1981, §38-2-1074, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 874.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, §§ 226, 229.

38-2-1075. Restoration of rights, privileges, and property, in event of remission; administrative discharge; reinstatement.

  1. Under such regulations as may be prescribed pursuant to this chapter, all rights, privileges, and property affected by an executed part of a court-martial sentence which has been set aside or disapproved, except an executed dismissal or discharge, shall be restored unless a new trial or rehearing is ordered and such executed part is included in a sentence imposed upon the new trial or rehearing.
  2. If a previously executed sentence of dishonorable or bad conduct discharge is not imposed on a new trial, the Governor may substitute therefor a form of discharge authorized for administrative issuance unless the accused is to serve out the remainder of the accused's enlistment.
  3. If a previously executed sentence of dismissal is not imposed on a new trial, the Governor may substitute therefor a form of discharge authorized for administrative issue, and the commissioned officer dismissed by that sentence may be reappointed by the Governor to such commissioned grade and with such rank as in the opinion of the Governor that former officer would have attained had the former officer not been dismissed. The reappointment of such a former officer shall be without regard to the existence of a vacancy and shall affect the promotion status of other officers only insofar as the Governor may direct. All time between the dismissal and the reappointment shall be considered as actual service for all purposes, including, but not limited to, the right to pay and allowances.

(Code 1981, §38-2-1075, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 875.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 226.

38-2-1076. Finality of proceedings, findings, and sentences; binding effect.

The appellate review of records of trial provided by this article, the proceedings, findings, and sentences of courts-martial as approved, reviewed, or affirmed as required by this article, and all dismissals and discharges carried into execution under sentences by courts-martial following approval, review, or affirmation as required by this article shall be final and conclusive. Orders publishing the proceedings of courts-martial and all action taken pursuant to those proceedings shall be binding upon all departments, courts, agencies, and officers of the United States and officers of another state subject only to action upon a petition for a new trial as provided in Code Section 38-2-1073 and to action under Code Section 38-2-1074.

(Code 1981, §38-2-1076, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 876.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 229.

38-2-1076.1. Court-martial sentence requires taking leave.

Under regulations prescribed pursuant to Part 1 of Article 2 of this chapter, an accused who has been sentenced by a court-martial shall be required to take leave pending completion of action under this Code section if the sentence as approved under Code Section 38-2-1060 includes an unsuspended dismissal or an unsuspended dishonorable or bad conduct discharge. The accused shall be required to begin such leave on the date on which the sentence is approved under Code Section 38-2-1060 or at any time after such date, and such leave shall be continued until the date on which action under this Code section is completed or may be terminated at any earlier time.

(Code 1981, §38-2-1076.1, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

PART 10 P UNITIVE PROVISIONS

38-2-1077. Principals.

Any person subject to this article who:

  1. Commits an offense punishable by this article or aids, abets, counsels, commands, or procures its commission; or
  2. Causes an act to be done which if directly performed by that person would be punishable by this article

    is a principal.

(Code 1981, §38-2-1077, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 877.

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, §§ 120, 122 et seq.

38-2-1078. Accessory after the fact.

Any person subject to this article who, knowing that an offense punishable by this article has been committed, receives, comforts, or assists the offender in order to hinder or prevent his or her apprehension, trial, or punishment shall be punished as a court-martial may direct.

(Code 1981, §38-2-1078, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 878.

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, § 117.

ALR.

- Charge of harboring or concealing or assisting one charged with crime to avoid arrest, predicated upon financial assistance, 130 A.L.R. 150.

38-2-1079. Conviction of lesser included offense.

An accused may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein.

(Code 1981, §38-2-1079, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 879.

38-2-1080. Attempts.

  1. An act, done with specific intent to commit an offense under this article, amounting to more than mere preparation and tending, even though failing, to effect its commission is an attempt to commit that offense.
  2. Any person subject to this article who attempts to commit any offense punishable by this article shall be punished as a court-martial may direct, unless otherwise specifically prescribed.
  3. Any person subject to this article may be convicted of an attempt to commit an offense although it appears on the trial that the offense was consummated.

(Code 1981, §38-2-1080, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 880.

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, § 100 et seq.

38-2-1081. Conspiracy.

Any person subject to this article who conspires with any other person to commit an offense under this article shall, if one or more of the conspirators does an act to effect the object of the conspiracy, be punished as a court-martial may direct.

(Code 1981, §38-2-1081, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 881.

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, § 124. 53A Am. Jur. 2d, Military and Civil Defense, § 211.

38-2-1082. Solicitation of desertion, mutiny, misbehavior before the enemy, or sedition.

  1. Any person subject to this article who solicits or advises another or others to desert in violation of Code Section 38-2-1085 or mutiny in violation of Code Section 38-2-1094 shall, if the offense solicited or advised is attempted or committed, be punished with the punishment provided for the commission of the offense; but, if the offense solicited or advised is not committed or attempted, the person shall be punished as a court-martial may direct.
  2. Any person subject to this article who solicits or advises another or others to commit an act of misbehavior before the enemy in violation of Code Section 38-2-1099 or sedition in violation of Code Section 38-2-1094 shall, if the offense solicited or advised is committed, be punished with the punishment provided for the commission of the offense; but, if the offense solicited or advised is not committed, the person shall be punished as a court-martial may direct.

(Code 1981, §38-2-1082, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 882.

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, §§ 103, 104.

38-2-1083. Fraudulent enlistment, appointment, or separation.

Any person who:

  1. Procures his or her own enlistment or appointment in the organized militia by knowingly false representation or deliberate concealment as to his or her qualifications for that enlistment or appointment and receives pay or allowances thereunder; or
  2. Procures his or her own separation from the organized militia by knowingly false representation or deliberate concealment as to his or her eligibility for that separation

    shall be punished as a court-martial may direct.

(Code 1981, §38-2-1083, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 883.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 195.

38-2-1084. Unlawful enlistment, appointment, or separation.

Any person subject to this article who effects an enlistment or appointment in or a separation from the organized militia of any person who is known to him or her to be ineligible for that enlistment, appointment, or separation because it is prohibited by law, regulation, or order shall be punished as a court-martial may direct.

(Code 1981, §38-2-1084, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 884.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 195.

38-2-1085. Desertion.

  1. Any member of the organized militia shall be guilty of desertion who:
    1. Without authority goes or remains absent from his or her unit, organization, or place of duty with intent to remain away therefrom permanently;
    2. Quits his or her unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service; or
    3. Without being regularly separated from the organized militia, enlists or accepts another appointment in the organized militia, or in one of the armed forces of the United States, without fully disclosing the fact that the member has not been regularly separated, or enters any foreign armed service except when authorized by the United States.
  2. Any commissioned officer of the organized militia who, after tender of his or her resignation and before notice of its acceptance, quits his or her post or proper duties without leave and with intent to remain away therefrom permanently shall be guilty of desertion.
  3. Any person found guilty of desertion or attempt to desert shall be punished by:
    1. Confinement of not more than ten years or such other punishment as a court-martial may direct if the offense is committed in time of war; or
    2. Punishment as a court-martial may direct if the offense occurs at any time other than in time of war.

(Code 1981, §38-2-1085, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

Cross references.

- Statute of limitations, § 38-2-437.

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 885.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 192.

38-2-1086. Absence without leave.

Any person subject to this article shall be punished as a court-martial may direct who, without authority:

  1. Fails to go to his or her appointed place of duty at the time prescribed;
  2. Goes from his or her place of duty; or
  3. Absents himself or herself or remains absent from his or her unit, organization, or place of duty at which the person is required to be at the time prescribed.

(Code 1981, §38-2-1086, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

Cross references.

- Statute of limitations, § 38-2-437.

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 886.

38-2-1087. Missing movement of ship, aircraft, or unit.

Any person subject to this article who through neglect or design misses the movement of a ship, aircraft, or unit with which the person is required in the course of duty to move shall be punished as a court-martial may direct.

(Code 1981, §38-2-1087, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 887.

38-2-1088. Contempt toward officials.

Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the secretary of a military department, the Secretary of Homeland Security, or the Governor or General Assembly shall be punished as a court-martial may direct.

(Code 1981, §38-2-1088, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 888.

38-2-1089. Disrespect toward a superior officer.

Any person subject to this article who behaves with disrespect toward his or her superior commissioned officer shall be punished as a court-martial may direct.

(Code 1981, §38-2-1089, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 889.

38-2-1090. Assaulting or willfully disobeying officer.

Any person subject to this article who:

  1. Strikes his or her superior commissioned officer or draws or lifts up any weapon or offers any violence against said superior commissioned officer while he or she is in the execution of his or her office; or
  2. Willfully disobeys a lawful command of his or her superior commissioned officer

    shall be punished, if the offense is committed in time of war, by confinement of not more than ten years or such other punishment as a court-martial may direct, or if the offense is committed at any time other than a time of war, by such punishment as a court-martial may direct.

(Code 1981, §38-2-1090, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 890.

38-2-1091. Insubordination toward warrant or noncommissioned officer.

Any warrant officer or enlisted member shall be punished as a court-martial may direct who:

  1. Strikes or assaults a warrant officer, noncommissioned officer, or petty officer while that officer is in the execution of his or her office;
  2. Willfully disobeys the lawful order of a warrant officer, noncommissioned officer, or petty officer; or
  3. Treats with contempt or is disrespectful in language or deportment toward a warrant officer, noncommissioned officer, or petty officer while that officer is in the execution of his or her office.

(Code 1981, §38-2-1091, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 891.

38-2-1092. Failure to obey order or regulation.

Any person subject to this article shall be punished as a court-martial may direct who:

  1. Violates or fails to obey any lawful general order or regulation;
  2. Having knowledge of any other lawful order issued by a member of the organized militia, which it is his or her duty to obey, fails to obey the order; or
  3. Is derelict in the performance of his or her duties.

(Code 1981, §38-2-1092, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 892.

38-2-1093. Cruelty and maltreatment of others under one's command.

Any person subject to this article who is guilty of cruelty toward, or oppression or maltreatment of, any person subject to his or her orders shall be punished as a court-martial may direct.

(Code 1981, §38-2-1093, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 893.

38-2-1094. Mutiny and sedition.

  1. Any person subject to this article who:
    1. With intent to usurp or override lawful military authority, refuses, in concert with any other person, to obey orders or otherwise do his or her duty or creates any violence or disturbance shall be guilty of mutiny;
    2. With intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, violence, or other disturbance against that authority shall be guilty of sedition; or
    3. Fails to do his or her utmost to prevent and suppress a mutiny or sedition being committed in his or her presence, or fails to take all reasonable means to inform his or her superior commissioned officer or commanding officer of a mutiny or sedition which the person knows or has reason to believe is taking place, shall be guilty of a failure to suppress or report a mutiny or sedition.
  2. A person who is found guilty of attempted mutiny, mutiny, sedition, or failure to suppress or report a mutiny or sedition shall be punished as a court-martial may direct.

(Code 1981, §38-2-1094, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

Cross references.

- Treason and other subversive activities, § 16-11-1 et seq.

Statute of limitations, § 38-2-437.

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 894.

38-2-1095. Resistance, breach of arrest, and escape.

Any person subject to this article shall be punished as a court-martial may direct who:

  1. Resists apprehension;
  2. Flees from apprehension;
  3. Breaks arrest; or
  4. Escapes from custody or confinement.

(Code 1981, §38-2-1095, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 895.

38-2-1096. Assistance in a prisoner's escape.

Any person subject to this article who, without proper authority, releases any prisoner committed to his or her charge, or who through neglect or design suffers any such prisoner to escape, shall be punished as a court-martial may direct, whether or not the prisoner was committed in strict compliance with law.

(Code 1981, §38-2-1096, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 896.

38-2-1097. Unlawful detention.

Any person subject to this article who, except as provided by law or regulation, apprehends, arrests, or confines any person shall be punished as a court-martial may direct.

(Code 1981, §38-2-1097, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 897.

38-2-1098. Noncompliance with procedural rules; unnecessary delay.

Any person subject to this article shall be punished as a court-martial may direct who:

  1. Is responsible for unnecessary delay in the disposition of any case of a person accused of an offense under this article; or
  2. Knowingly and intentionally fails to enforce or comply with any provision of this article regulating the proceedings before, during, or after trial of an accused.

(Code 1981, §38-2-1098, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 898.

38-2-1099. Misbehavior before the enemy.

Any person subject to this article shall be punished as a court-martial may direct who before or in the presence of the enemy:

  1. Runs away;
  2. Shamefully abandons, surrenders, or delivers up any command, unit, place, or military property which it is his or her duty to defend;
  3. Through disobedience, neglect, or intentional misconduct endangers the safety of any such command, unit, place, or military property;
  4. Casts away his or her arms or ammunition;
  5. Is guilty of cowardly conduct;
  6. Quits his or her place of duty to plunder or pillage;
  7. Causes false alarms in any command, unit, or place under control of the armed forces of the United States or the organized militia;
  8. Willfully fails to do his or her utmost to encounter, engage, capture, or destroy any enemy troops, combatants, vessels, aircraft, or any other thing which it is his or her duty so to encounter, engage, capture, or destroy; or
  9. Does not afford all practicable relief and assistance to any troops, combatants, vessels, or aircraft of the armed forces belonging to the United States or their allies, to this state, or to another state, when engaged in battle.

(Code 1981, §38-2-1099, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 899.

38-2-1100. Compelling surrender.

Any person subject to this article who compels or attempts to compel a commander, an individual in command of the National Guard of another state, or an individual in command of a vessel, aircraft, or other military property or of any body of members of the armed forces, to give it up to an enemy or to abandon it, or who strikes the colors or flag to an enemy without proper authority, shall be punished as a court-martial may direct.

(Code 1981, §38-2-1100, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 900.

38-2-1101. Disclosure or improper use of countersign or parole.

Any person subject to this article who in time of war discloses the parole or countersign to any person not entitled to receive it or who gives to another, who is entitled to receive and use the parole or countersign, a different parole or countersign from that which, to his or her knowledge, the person was authorized and required to give, shall be punished as a court-martial may direct.

(Code 1981, §38-2-1101, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 901.

38-2-1102. Forcing a safeguard.

Any person subject to this article who forces a safeguard shall be punished as a court-martial may direct.

(Code 1981, §38-2-1102, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 902.

38-2-1103. Captured or abandoned property; trading and looting prohibited.

  1. All persons subject to this article shall secure all public property taken for the service of the United States or this state or another state and shall give notice and turn over to the proper authority without delay all captured or abandoned property in their possession, custody, or control.
  2. Any person subject to this article shall be punished as a court-martial may direct who:
    1. Fails to carry out the duties prescribed in subsection (a) of this Code section;
    2. Buys, sells, trades, or in any way deals in or disposes of taken, captured, or abandoned property, whereby the person receives or expects any profit, benefit, or advantage to himself or herself or another directly or indirectly connected with himself or herself; or
    3. Engages in looting or pillaging.

(Code 1981, §38-2-1103, enacted by Ga. L. 2015, p. 753, § 1/HB 98; Ga. L. 2016, p. 864, § 38/HB 737.)

The 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, substituted "subsection (a) of this Code section" for "subsection (a)" at the end of paragraph (b)(1).

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 903.

38-2-1104. Aiding the enemy.

Any person subject to this article shall be punished as a court-martial may direct who:

  1. Aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or
  2. Without proper authority, knowingly harbors or protects or gives intelligence to, or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly.

(Code 1981, §38-2-1104, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

Cross references.

- Statute of limitations, § 38-2-437.

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 904.

38-2-1105. Misconduct as prisoner of war.

Any person subject to this article shall be punished as a court-martial may direct who, while in the hands of the enemy in time of war:

  1. For the purpose of securing favorable treatment by his or her captors acts without proper authority in a manner contrary to law, custom, or regulation to the detriment of others of whatever nationality held by the enemy as civilian or military prisoners; or
  2. While in a position of authority over such persons maltreats them without justifiable cause.

(Code 1981, §38-2-1105, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 905.

38-2-1106. Reserved.

(Code 1981, §38-2-1106, enacted by Ga. L. 2015, p. 753, § 1/HB 98.))

38-2-1107. Signing false official document; making false official statement.

Any person subject to this article who, with intent to deceive, signs any false record, return, regulation, order, or other official document made in the line of duty, knowing it to be false, or makes any other false official statement made in the line of duty, knowing it to be false, shall be punished as a court-martial may direct.

(Code 1981, §38-2-1107, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 907.

38-2-1108. Military property; loss, damage, destruction, or wrongful disposition.

Any person subject to this article shall be punished as a court-martial may direct who, without proper authority:

  1. Takes, sells, or otherwise disposes of any military property of the United States or of another state;
  2. Willfully or through neglect damages, destroys, or loses any military property of the United States or of another state; or
  3. Willfully or through neglect suffers to be lost, damaged, destroyed, sold, or wrongfully disposed of any military property of the United States or of another state.

(Code 1981, §38-2-1108, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

Cross references.

- Interference with government property, § 16-7-24.

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 908.

38-2-1109. Property other than military property; waste, spoilage, or destruction.

Any person subject to this article who willfully or recklessly wastes, spoils, or otherwise willfully and wrongfully takes, sells, destroys, or damages any property of another other than military property of the United States or of another state shall be punished as a court-martial may direct.

(Code 1981, §38-2-1109, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

Cross references.

- Procedure for complaint alleging willful damage to property by members of organized militia, § 38-2-576.

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 909.

38-2-1110. Willful or negligent hazarding of vessel.

  1. Any person subject to this article who willfully and wrongfully hazards or suffers to be hazarded any vessel of the armed forces of the United States or any organized militia shall be punished as a court-martial may direct.
  2. Any person subject to this article who negligently hazards or suffers to be hazarded any vessel of the armed forces of the United States or the organized militia shall be punished as a court-martial may direct.

(Code 1981, §38-2-1110, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 910.

38-2-1111. Driving while under the influence of drugs or alcohol.

Any person subject to this article shall be punished as a court-martial may direct who:

  1. Drives, operates, or physically controls any vehicle, aircraft, or vessel in a reckless or wanton manner or while impaired by a substance as described in subsection (b) of Code Section 38-2-1112.1; or
  2. Drives, operates, or is in actual physical control of any vehicle, aircraft, or vessel while drunk or when the alcohol concentration in the person's blood is equal to or exceeds 0.08 grams of alcohol per 100 milliliters of blood, as shown by chemical analysis, within three hours after such operation or control, or the person's breath is equal to or exceeds 0.08 grams of alcohol per 210 liters of breath, as shown by chemical analysis, within three hours after such operation or control.

(Code 1981, §38-2-1111, enacted by Ga. L. 2015, p. 753, § 1/HB 98; Ga. L. 2016, p. 864, § 38/HB 737.)

The 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, revised punctuation in paragraph (2).

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 911.

JUDICIAL DECISIONS

Sufficiency of indictment.

- Indictment for reckless driving and driving under the influence, taken as a whole, was sufficient. Hassell v. State, 212 Ga. App. 432, 442 S.E.2d 261 (1994).

RESEARCH REFERENCES

Am. Jur. 2d.

- 7A Am. Jur. 2d, Automobiles and Highway Traffic, § 271 et seq.

C.J.S.

- 61A C.J.S., Motor Vehicles, §§ 1354 et seq., 1382 et seq.

38-2-1112. Under the influence of alcohol while on duty.

Any person subject to this article, other than a sentinel or lookout, who is found under the influence of alcohol sufficient to impair the rational and full exercise of his or her mental or physical faculties on duty shall be punished as a court-martial may direct.

(Code 1981, §38-2-1112, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. §§ 912, 913.

38-2-1112.1. Use, possession, manufacture, distribution, or importation of certain controlled substances; exceptions.

  1. Any person subject to this article who wrongfully uses, possesses, manufactures, distributes, imports into the customs territory of the United States, exports from the United States, or introduces into an installation, vessel, vehicle, or aircraft used by or under the control of the armed forces of the United States or of the organized militia a substance described in subsection (b) of this Code section shall be punished as a court-martial may direct.
  2. The substances provided for by subsection (a) of this Code section shall be:
    1. Opium, heroin, cocaine, amphetamine, lysergic acid diethylamide, methamphetamine, phencyclidine, barbituric acid, and marijuana and any compound or derivative of any such substance;
    2. Any substance not specified in paragraph (1) of this subsection that is listed on a schedule of controlled substances prescribed by the President for the purposes of the Uniform Code of Military Justice of the armed forces of the United States, 10 U.S.C. Section 801, et seq.; and
    3. Any other substance not specified in paragraph (1) of this subsection or contained on a list prescribed by the President under paragraph (2) of this subsection that is listed in schedules I through V of the Controlled Substances Act, 21 U.S.C. Section 812.

(Code 1981, §38-2-1112.1, enacted by Ga. L. 2015, p. 753, § 1/HB 98; Ga. L. 2016, p. 864, § 38/HB 737.)

The 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, revised punctuation in paragraph (b)(2).

38-2-1113. Drunk or sleeping while standing post.

Any sentinel or lookout who is found under the influence of alcohol sufficient to impair the rational and full exercise of his or her mental or physical faculties or sleeping upon his or her post or leaves it before being regularly relieved shall be punished, if the offense is committed in time of war, by confinement of not more than ten years or other punishment as a court-martial may direct, but if the offense is committed at any time other than in time of war, by such punishment as a court-martial may direct.

(Code 1981, §38-2-1113, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 914.

38-2-1114. Reserved.

(Code 1981, §38-2-1114, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

38-2-1115. Malingering; feigning illness; self-infliction of injury.

Any person subject to this article shall be punished as a court-martial may direct who for the purpose of avoiding work, duty, or service:

  1. Feigns illness, physical disablement, mental lapse, or derangement; or
  2. Intentionally inflicts self-injury.

(Code 1981, §38-2-1115, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

38-2-1116. Riot or breach of peace.

Any person subject to this article who causes or participates in any riot or breach of the peace shall be punished as a court-martial may direct.

(Code 1981, §38-2-1116, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 916.

38-2-1117. Provoking words or gestures.

Any person subject to this article who uses provoking or reproachful words or gestures toward any other person subject to this article shall be punished as a court-martial may direct.

(Code 1981, §38-2-1117, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 917.

38-2-1118 through 38-2-1130. Reserved.

(Code 1981, §§38-2-1118 through38-2-1130, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

38-2-1131. Perjury.

Any person subject to this article is guilty of perjury and shall be punished as a court-martial may direct who in a judicial proceeding or in a course of justice willfully and corruptly:

  1. Upon a lawful oath or in any form allowed by law to be substituted for an oath, gives any false testimony material to the issue or matter of inquiry; or
  2. In any declaration, certificate, verification, or statement under penalty of perjury, subscribes any false statement material to the issue or matter of inquiry.

(Code 1981, §38-2-1131, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

Cross references.

- Statute of limitations, § 38-2-437.

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 931.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military, and Civil Defense, § 216. 60A Am. Jur. 2d, Perjury, § 1 et seq.

C.J.S.

- 70 C.J.S., Perjury, § 1 et seq.

38-2-1132. Fraudulent claims against the government.

Any person subject to this article shall, upon conviction, be punished as a court-martial may direct:

  1. Who, knowing it to be false or fraudulent:
    1. Makes any claim against the United States, this state, or any officer thereof; or
    2. Presents to any person in the civil or military service thereof, for approval or payment, any claim against the United States, this state, or any officer thereof;
  2. Who, for the purpose of obtaining the approval, allowance, or payment of any claim against the United States, this state, or any officer thereof:
    1. Makes or uses any writing or other paper or electronic submission knowing it to contain any false or fraudulent statements;
    2. Makes any oath, affirmation, or certification to any fact or to any writing or other paper or electronic submission knowing the oath, affirmation, or certification to be false; or
    3. Forges or counterfeits any signature upon any writing or other paper, or uses any such signature knowing it to be forged or counterfeited;
  3. Who, having charge, possession, custody, or control of any money or other property of the United States or this state, furnished or intended for the armed forces of the United States or the organized militia, knowingly delivers to any person having authority to receive it, any amount thereof less than that for which the person receives a certificate or receipt; or
  4. Who, being authorized to make or deliver any paper certifying the receipt of any property of the United States or this state, furnished or intended for the armed forces of the United States or the organized militia, makes or delivers to any person such writing without having full knowledge of the truth of the statements therein contained and with intent to defraud the United States or this state.

(Code 1981, §38-2-1132, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

Cross references.

- Statute of limitations, § 38-2-437.

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 932.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, §§ 216, 252.

C.J.S.

- 37 C.J.S., Fraud, §§ 1 et seq., 184 et seq.

ALR.

- False pretense: presentation of and attempt to establish fraudulent claim against governmental agency, 21 A.L.R. 180.

38-2-1133. Conduct unbecoming an officer.

Any commissioned officer, cadet, candidate, or midshipman who is convicted of conduct unbecoming an officer shall be punished as a court-martial may direct.

(Code 1981, §38-2-1133, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 933.

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, §§ 186, 187.

38-2-1134. General provision.

Though not specifically mentioned in this article, all disorders and neglects to the prejudice of good order and discipline in the organized militia and all conduct of a nature to bring discredit upon the organized militia shall be taken cognizance of by a court-martial and punished at the discretion of a military court. However, where a crime constitutes an offense that violates both this article and the criminal laws of the state where the offense occurs or criminal laws of the United States, jurisdiction of the military court shall be determined in accordance with subsection (b) of Code Section 38-2-1002.

(Code 1981, §38-2-1134, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 934.

PART 11 M ISCELLANEOUS PROVISIONS

38-2-1135. Courts of inquiry; composition; parties; report.

  1. Courts of inquiry to investigate any matter of concern to the organized militia may be convened by any person authorized to convene a general court-martial, whether or not the persons involved have requested such an inquiry.
  2. A court of inquiry shall consist of three or more commissioned officers. For each court of inquiry, the convening authority shall also appoint counsel for the court.
  3. Any person subject to this article whose conduct is subject to inquiry shall be designated as a party. Any person subject to this article who has a direct interest in the subject of inquiry has the right to be designated as a party upon request to the court. Any person designated as a party shall be given due notice and has the right to be present, to be represented by counsel, to cross-examine witnesses, and to introduce evidence.
  4. Members of a court of inquiry may be challenged by a party, but only for cause stated to the court.
  5. The members, counsel, the reporter, and interpreters of courts of inquiry shall take an oath to faithfully perform their duties.
  6. Witnesses may be summoned to appear and testify and be examined before courts of inquiry as provided for courts-martial.
  7. Courts of inquiry shall make findings of fact but shall not express opinions or make recommendations unless required to do so by the convening authority.
  8. Each court of inquiry shall keep a record of its proceedings, which shall be authenticated by the signatures of the president and counsel for the court and forwarded to the convening authority. If the record cannot be authenticated by the president, it shall be signed by a member in lieu of the president. If the record cannot be authenticated by the counsel for the court, it shall be signed by a member in lieu of the counsel.

(Code 1981, §38-2-1135, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

Cross references.

- Vesting of efficiency and medical examining boards with powers of courts of inquiry and courts-martial, § 38-2-216.

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 935.

38-2-1136. Authority to administer oaths; limitations; effect of signature.

  1. The following persons shall have the power to administer oaths for the purposes of military administration, including military justice:
    1. All judge advocates;
    2. All summary courts-martial;
    3. All adjutants, assistant adjutants, acting adjutants, and personnel adjutants;
    4. All commanding officers of the naval militia; and
    5. All other persons designated by regulations of the armed forces of the United States or by law.
  2. The following persons shall have the power to administer oaths necessary in the performance of their duties:
    1. The president, military judge, and trial counsel for all general and special courts-martial;
    2. The president and the counsel for the court of any court of inquiry;
    3. All officers designated to take a deposition;
    4. All persons detailed to conduct an investigation;
    5. All recruiting officers; and
    6. All other persons designated by regulations of the armed forces of the United States or by law.
  3. The signature without seal of any such person provided for by subsections (a) and (b) of this Code section, together with the title of his or her office, is prima facie evidence of the person's authority.

(Code 1981, §38-2-1136, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 936.

38-2-1136.1. Marshals; duties, powers, immunities.

  1. Military judges may appoint and, at any time, remove one or more marshals who shall execute any process, mandate, or order issued by the judge and shall perform all acts and duties by this chapter imposed on or authorized to be performed by any sheriff as defined in Code Section 15-16-10.
  2. All such marshals shall be deemed peace officers and for the purposes of this article shall have all the powers and immunities of peace officers.

(Code 1981, §38-2-1136.1, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

38-2-1137. Explanation of Code sections to enlisted personnel.

    1. The Code sections specified in paragraph (3) of this subsection shall be carefully explained to each enlisted member at the time of, or within 90 days after, the member's initial entrance into a duty status with the organized militia.
    2. Such articles as provided for by paragraph (1) of this subsection shall be explained again:
      1. After the member has completed basic or recruit training; and
      2. At the time when the member reenlists.
    3. This subsection shall apply with respect to this Code section and Code Sections 38-2-1002 through 38-2-1005, 38-2-1007 through 38-2-1014, 38-2-1015, 38-2-1025, 38-2-1027, 38-2-1031, 38-2-1037, 38-2-1038, 38-2-1055, 38-2-1077 through 38-2-1134, 38-2-1138, and 38-2-1139.
  1. The text of this article and of the regulations prescribed hereunder shall be made available to a member of the organized militia, upon request by the member, for the member's personal examination.
  2. Failure to provide the explanations of this article as provided for by this Code section shall not be a defense to a court-martial proceeding, the administration of nonjudicial punishment, or any other action.

(Code 1981, §38-2-1137, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 937.

38-2-1138. Complaints of wrongs by commanding officers.

Any member of the organized militia who believes himself or herself wronged by a commanding officer and who, upon due application to that commanding officer, is refused redress may complain to the assistant adjutant general for army, the assistant adjutant general for air, or the brigadier general in charge of the State Defense Force, as applicable, who shall forward the complaint to the senior force commander over the officer against whom such complaint is made. The senior force commander shall examine into the complaint and take proper measures for redressing the wrong complained of and shall, as soon as possible, send to the adjutant general a true statement of such complaint with the proceedings had thereon. Any complaint against a senior force commander shall be made to the adjutant general who shall examine into the complaint and take proper measures for redressing the wrong complained of.

(Code 1981, §38-2-1138, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

38-2-1138.1. State administrative letter of reprimand.

  1. The adjutant general, assistant adjutant general for army, or assistant adjutant general for air may issue to any member under his or her authority a state administrative letter of reprimand.
  2. A state administrative letter of reprimand shall not be filed in the member's federal personnel records unless it meets the requirements for filing under the applicable regulations or instructions of the affected member.
  3. A state administrative letter of reprimand shall be included for consideration when determining future assignments within the state for the affected member.
  4. The member against whom a state administrative letter of reprimand is issued shall have the same rights to review evidence and present a rebuttal as he or she would have if the state administrative letter of reprimand were to be filed in his or her federal personnel file.

(Code 1981, §38-2-1138.1, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 938.

38-2-1139. Redress of injuries to private property; complaint; investigating board; assessment.

  1. Whenever a complaint is made to any commanding officer that willful damage has been done to the property of any person or that the person's property has been wrongfully taken by members of the organized militia, such commanding officer may, under such regulations prescribed pursuant to Part 1 of Article 2 of this chapter, convene a board to investigate the complaint. The board shall consist of from one to three commissioned officers and, for the purpose of that investigation, it has power to summon witnesses and examine them upon oath, to receive depositions or other documentary evidence, and to assess the damages sustained against the responsible parties. The assessment of damages made by the board shall be subject to the approval of the commanding officer and, in the amount approved by such commanding officer, shall be charged against the pay of the offenders. The order of the commanding officer directing charges authorized by this Code section shall be conclusive on any disbursing officer for payment to the injured parties of the damages so assessed and approved.
  2. If the offenders cannot be ascertained but the organization or detachment to which they belong is known, charges totaling the amount of damages assessed and approved may be made in such proportion as may be considered just upon the individual members thereof who are shown to have been present at the scene at the time the damages complained of were inflicted, as determined by the approved findings of the board.

(Code 1981, §38-2-1139, enacted by Ga. L. 2015, p. 753, § 1/HB 98; Ga. L. 2017, p. 774, § 38/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "charges authorized by this Code section" for "charges herein authorized" near the middle of the last sentence of subsection (a).

Cross references.

- Destruction of property other than military property generally, § 38-2-541.

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 939.

RESEARCH REFERENCES

ALR.

- Official immunity of state national guard members, 52 A.L.R.4th 1095.

38-2-1140. Delegation of authority by Governor.

Except as provided in Code Section 38-2-1022, the Governor may delegate any authority vested in the Governor under this article and provide for the subdelegation of any such authority.

(Code 1981, §38-2-1140, enacted by Ga. L. 2015, p. 753, § 1/HB 98; Ga. L. 2016, p. 864, § 38/HB 737.)

The 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, substituted "subdelegation" for "sub delegation" in this Code section.

U.S. Code.

- For similar provision in Uniform Code of Military Justice, see 10 U.S.C. § 940.

38-2-1141. Fees and authorized travel expenses of witnesses, victims, court reporters, and interpreters.

The fees and authorized travel expenses of all witnesses, experts, victims, court reporters, and interpreters, fees for the service of process, the costs of collection, apprehension, detention, and confinement, and all other necessary expenses of prosecution and the administration of military justice, not otherwise payable by any other source, shall be paid out of the military fund as described in Code Section 38-2-170.

(Code 1981, §38-2-1141, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

38-2-1142. Fines for contempt; methods of collection and payment.

  1. Fines collected as a result of being found in contempt shall be collected in the following manner:
    1. By cash or money order;
    2. By retention of any pay or allowances due or to become due to the person fined from another state or the United States; or
    3. By garnishment or levy, together with costs, on the wages, goods, and chattels of a person delinquent in paying a fine, as provided by law.
  2. Any sum so received or retained shall be deposited in the military justice fund as provided in Code Section 38-2-170.

(Code 1981, §38-2-1142, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

38-2-1143. Construction with the federal Uniform Code of Military Justice.

This article shall be so construed as to effectuate its general purpose to make it uniform, so far as practical, with the Uniform Code of Military Justice, Chapter 47 of Title 10 of the United States Code.

(Code 1981, §38-2-1143, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

38-2-1144. Immunity.

All persons acting under the provisions of this article, whether as a member of the military or as a civilian, shall be immune from any personal liability for any of the acts or omissions which they did or failed to do as part of their duties under this article.

(Code 1981, §38-2-1144, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

38-2-1145. Severability.

The provisions of this article are hereby declared to be severable, and if any provision of this article or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this article.

(Code 1981, §38-2-1145, enacted by Ga. L. 2015, p. 753, § 1/HB 98.)

CHAPTER 3 EMERGENCY MANAGEMENT

Article 1 General Provisions.
Article 2 Organization and Administration.
Article 2A Board of Homeland Security.
Article 3 Emergency Powers.
Part 1 GOVERNOR.
Part 2 JUDICIAL EMERGENCY.
Article 4 Recognition of Emergency Medical Services Personnel Licensure Interstate Compact.
Article 5 Emergency Management Assistance Compact.
Article 6 Disaster Volunteer Leave Act.
Article 7 State-wide Alert System for Missing Disabled Adults.
Article 8 Alert System for Unapprehended Murder or Rape Suspects.
Article 9 Georgia Emergency Management and Homeland Security Agency Nomenclature Act.
Article 10 State-wide First Responder Building Mapping Information System.
Article 11 Uniform Emergency Volunteer Health Practitioners Act.
Article 12 Emergency Communications Authority.
Cross references.

- Tax credit for disaster assistance funds received, § 48-7-29.4.

OPINIONS OF THE ATTORNEY GENERAL

Status of Stone Mountain Memorial Association.

- Stone Mountain Memorial Association cannot properly be construed to be a "state agency" for the purposes of Ga. L. 1951, p. 224.

Delegation of responsibilities.

- Governor and the director of civil defense (now emergency management) may delegate responsibilities with respect to civil defense. 1962 Op. Att'y Gen. p. 29.

RESEARCH REFERENCES

ALR.

- Judicial decisions involving rationing, 155 A.L.R. 1475.

ARTICLE 1 GENERAL PROVISIONS

Law reviews.

- For article, "Is Georgia Prepared for a Health Pandemic? Legal Issues Regarding Emergency Preparedness and Declaration of Emergency Health Pandemic in Georgia," see 15 (No. 6) Ga. St. B.J. 30 (2010).

OPINIONS OF THE ATTORNEY GENERAL

Lowering of minimum age for participation in rescue operations.

- There are no legal bars to amending rules and regulations of the Civil Defense Division (now Emergency Management Division), to lower minimum age for participating in Georgia civil defense (now emergency management) rescue operations from 18 to 16. 1981 Op. Att'y Gen. No. 81-73.

38-3-1. Short title.

Articles 1 through 3 of this chapter may be cited as the "Georgia Emergency Management Act of 1981."

(Ga. L. 1951, p. 224, § 1; Ga. L. 1982, p. 3, § 38.)

Cross references.

- Georgia Antiterroristic Training Act, T. 16, C. 11, A. 4, P. 4.

OPINIONS OF THE ATTORNEY GENERAL

Chapter authorizes board for implementation of emergency management plan.

- Ga. L. 1951, p. 224 authorizes city and county governments to appoint the various boards necessary to implement the Georgia plan for emergency management of resources. 1967 Op. Att'y Gen. No. 67-124.

38-3-2. Policy and purpose.

  1. Because of the existing and increasing possibility of the occurrence of emergencies or disasters resulting from manmade or natural causes or enemy attack; in order to ensure that preparations of this state will be adequate to deal with such emergencies or disasters; generally to provide for the common defense and to protect the public peace, health, and safety; and to preserve the lives and property of the people of this state, it is found and declared to be necessary:
    1. To create a state emergency management agency and to authorize the creation of local organizations for emergency management in the political subdivisions of the state;
    2. To confer upon the Governor and upon the executive heads of governing bodies of the political subdivisions of the state the emergency powers provided in Articles 1 through 3 of this chapter;
    3. To provide for the rendering of mutual aid among the political subdivisions of the state, with other states, and with the federal government with respect to the carrying out of emergency management functions; and
    4. To authorize the establishment of such organizations and the taking of such steps as are necessary and appropriate to carry out Articles 1 through 3 of this chapter.
  2. It is further declared to be the purpose of Articles 1 through 3 of this chapter and the policy of this state that all emergency management functions of this state be coordinated to the maximum extent with the comparable functions of the federal government, including its various departments and agencies; of other states and localities; and of private agencies of every type, to the end that the most effective preparation and use may be made of the nation's manpower, resources, and facilities for dealing with any emergency or disaster that may occur.

(Ga. L. 1981, p. 224, § 2; Ga. L. 1953, Nov.-Dec. Sess., p. 171, § 1; Ga. L. 1973, p. 74, § 1; Ga. L. 1981, p. 389, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 53A Am. Jur. 2d, Military and Civil Defense, § 313.

C.J.S.

- 93 C.J.S., War and National Defense, § 74.

38-3-3. Definitions.

As used in Articles 1 through 3 of this chapter, the term:

  1. "Bioterrorism" means the intentional creation or use of any microorganism, virus, infectious substance, or any component thereof, whether naturally occurring or bioengineered, to cause death, illness, disease, or other biological malfunction in a human, animal, plant, or other living organism in order improperly or illegally to influence the conduct of government, to interfere with or disrupt commerce, or to intimidate or coerce a civilian population.
  2. "Emergency management" means the preparation for the carrying out of all emergency functions other than functions for which military forces are primarily responsible to prevent, minimize, and repair injury and damage resulting from emergencies, energy emergencies, disasters, or the imminent threat thereof, of manmade or natural origin caused by enemy attack, sabotage, acts of domestic or international terrorism, civil disturbance, fire, flood, earthquake, wind, storm, wave action, oil spill or other water contamination requiring emergency action to avert danger or damage, epidemic, air contamination, blight, drought, infestation, explosion, riot or other hostile action, radiological action, or other causes. These functions include, without limitation, fire-fighting services; police services; emergency medical services; rescue; engineering; warning services; communications; defense from radiological, chemical, biological, and other special weapons to include weapons of mass destruction; evacuation of persons from stricken areas; emergency welfare services; consequence management functions to include victim services; emergency transportation; plant protection; temporary restoration of public utility services; and other functions related to civilian protection, together with all other activities necessary or incidental to the preparation for and carrying out of the foregoing functions.

    (2.1) "Emergency Operations Command" means the unified command group comprising the director of emergency management and homeland security, the director of the Georgia Bureau of Investigation, the commissioner of public safety, the commissioner of natural resources, the commissioner of transportation, and the adjutant general.

  3. "Energy emergency" means a condition of danger to the health, safety, welfare, or economic well-being of the citizens of this state arising out of a present or threatened shortage of usable energy resources; also any condition of substantial danger to the health, safety, or welfare of the citizens of this state resulting from the operation of any electrical power-generating facility, the transport of any energy resource by any means whatsoever, or the production, use, or disposal of any source material, special nuclear material, or by-product, as defined by the Atomic Energy Act of 1954, 68 Stat. 919, 42 U.S.C. Section 2011, et seq.; also any nuclear incident, as defined by the Atomic Energy Act of 1954, occurring within or outside this state, substantially affecting the health, safety, or welfare of the citizens of this state.
  4. "Energy resources" means all forms of energy or power, including, without limitation, oil, gasoline, and other petroleum products; natural or synthetic gas; electricity in all forms and from all sources; and other fuels of any description, except wood.

    (4.1) "Homeland security activity" shall have the same meaning as provided for in Code Section 35-3-200.

    (4.2) "Pandemic influenza emergency" means the declaration by the World Health Organization of at least a Phase 5 Pandemic Alert for influenza occurring in the United States or the State of Georgia or the declaration by the Centers for Disease Control and Prevention of at least a Category 2 Pandemic Severity Index for influenza occurring in the United States or the State of Georgia.

  5. "Political subdivision" means:
    1. Cities having a population of over 1,000;
    2. Cities having a population of less than 1,000 in which the Governor has established a local organization; and
    3. Counties.
  6. "Public health emergency" means the occurrence or imminent threat of an illness or health condition that is reasonably believed to be caused by bioterrorism or the appearance of a novel or previously controlled or eradicated infectious agent or biological toxin and poses a high probability of any of the following harms:
    1. A large number of deaths in the affected population;
    2. A large number of serious or long-term disabilities in the affected population; or
    3. Widespread exposure to an infectious or toxic agent that poses a significant risk of substantial future harm to a large number of people in the affected population.
  7. "State of emergency" means the condition declared by the Governor when, in his or her judgment, the threat or actual occurrence of a disaster, emergency, or energy emergency in any part of the state is of sufficient severity and magnitude to warrant extraordinary assistance by the state to supplement the efforts and available resources of the several localities and relief organizations in preventing or alleviating the damage, loss, hardship, or suffering threatened or caused thereby.

(Ga. L. 1951, p. 224, § 3; Ga. L. 1973, p. 74, §§ 2, 6; Ga. L. 1977, p. 192, § 1; Ga. L. 1981, p. 389, § 2; Ga. L. 1982, p. 3, § 38; Ga. L. 1995, p. 10, § 38; Ga. L. 1999, p. 372, § 1; Ga. L. 2002, p. 1386, § 11; Ga. L. 2009, p. 184, § 3/HB 217; Ga. L. 2012, p. 775, § 38/HB 942; Ga. L. 2018, p. 681, § 1-1/HB 779; Ga. L. 2019, p. 1056, § 38/SB 52.)

The 2012 amendment, effective May 1, 2012, part of an Act to revise, modernize, and correct the Code, substituted "42 U.S.C. Section 2011," for "42 U.S.C. 2011," in paragraph (3).

The 2018 amendment, effective July 1, 2018, added paragraph (2.1); inserted a comma following "use" in the middle of paragraph (3); added paragraph (4.1); redesignated former paragraph (4.1) as present paragraph (4.2); and inserted "or her" near the middle of paragraph (7).

The 2019 amendment, effective May 12, 2019, part of an Act to revise, modernize, and correct the Code, revised punctuation in paragraph (4).

Law reviews.

- For note on the 2002 amendment of this Code section, see 19 Georgia. St. U.L. Rev. 1 (2002).

OPINIONS OF THE ATTORNEY GENERAL

Governor's authority over local evacuation efforts.

- Designated local officials have the authority to require evacuation of citizens during a local emergency, but the Governor may exercise the Governor's authority over such an evacuation if the Governor believes the emergency is beyond local control or constitutes a "state of emergency." 1983 Op. Att'y Gen. No. 83-60.

38-3-4. Enforcement.

The law enforcement authorities of the state and of the political subdivisions thereof shall enforce the orders, rules, and regulations issued pursuant to Articles 1 through 3 of this chapter.

(Ga. L. 1951, p. 224, § 16.)

OPINIONS OF THE ATTORNEY GENERAL

Sheriff's function.

- Sheriff's enforcement function is separate and distinct from managerial function of county commission. 1982 Op. Att'y Gen. No. 82-19.

As law enforcing authority of county, county sheriff is responsible for enforcing all valid orders, rules and regulations issued pursuant to O.C.G.A. Art. 1, Ch. 3, T. 38 by a local unit director. 1982 Op. Att'y Gen. No. 82-19.

38-3-5. (See Editor's notes.) Injunction; who may obtain; remedy at law irrelevant.

The director of emergency management or any person, corporation, firm, or association, in addition to the remedies set forth in Articles 1 through 3 of this chapter, may obtain from a court of competent jurisdiction an injunction to restrain violation of the provisions of Articles 1 through 3 of this chapter. The grant of an injunction is authorized notwithstanding the availability of adequate remedies at law.

(Ga. L. 1974, p. 558, § 3.)

For application of this statute in 2020, see Executive Order 04.20.20.01.

A listing of Executive Orders issued in 2020 can be found at https://gov.georgia.gov/executive-action/executive-orders/2020-executive-orders.

38-3-6. Liberality of construction.

Articles 1 through 3 of this chapter shall be construed liberally in order to effectuate their purposes.

(Ga. L. 1951, p. 224, § 22.)

38-3-7. Penalty for violation.

Any person who violates any provision of Articles 1 through 3 of this chapter or any rule, order, or regulation made pursuant to Articles 1 through 3 of this chapter shall be guilty of a misdemeanor.

(Ga. L. 1951, p. 224, § 21.)

ARTICLE 2 ORGANIZATION AND ADMINISTRATION

Administrative Rules and Regulations.

- Emergency management disaster preparedness equipment grants-in-aid, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Defense Emergency Management Division, Chapter 155-2.

OPINIONS OF THE ATTORNEY GENERAL

Lowering minimum age for participation in rescue operations.

- There are no legal bars to amending rules and regulations of the Civil Defense Division (now Emergency Management Division) to lower the minimum age for participating in Georgia civil defense (now emergency management) rescue operations from 18 to 16. 1981 Op. Att'y Gen. No. 81-73.

38-3-20. Georgia Emergency Management and Homeland Security Agency created; director; staff; offices; director's duties; disaster coordinator.

  1. There is established the Georgia Emergency Management and Homeland Security Agency with a director of emergency management and homeland security who shall be the head thereof. The Georgia Emergency Management and Homeland Security Agency shall be assigned to the Office of Planning and Budget for administrative purposes only as provided in Code Section 50-4-3.
  2. The Governor shall appoint the director of emergency management and homeland security. He or she shall hold office at the pleasure of the Governor, who shall fix his or her compensation. The director of emergency management and homeland security shall hold no other state office.
  3. The director may employ such professional, technical, clerical, stenographic, and other personnel, may fix their compensation, and may make such expenditures within the appropriation therefor, or from other funds made available for purposes of emergency management and homeland security, as may be necessary to carry out the purposes of Article 9 of Chapter 3 of Title 35; Article 1, this article, and Article 3 of this chapter; and the duties of the agency and the director described in Part 4 of Article 2 of Chapter 5 of Title 46, the "Georgia Emergency Telephone Number 9-1-1 Service Act of 1977," as amended.
  4. The director and other personnel of the Georgia Emergency Management and Homeland Security Agency shall be provided with appropriate office space, furniture, equipment, supplies, stationery, and printing in the same manner as provided for personnel of other state agencies.
  5. The director, subject to the direction and control of the Governor, shall:
    1. Be the executive head of the Georgia Emergency Management and Homeland Security Agency and shall be responsible to the Governor for carrying out the program for emergency management and homeland security in this state;
    2. Serve as the central authority reporting to the Governor on all matters relating to homeland security;
    3. Have authority over areas involving imminent or current terrorist activity within this state, including, but not limited to, leading and directing the actions of the Homeland Security Task Force and the Emergency Operations Command where such Emergency Operations Command shall not usurp the operational authority of participating agencies but shall be responsible only for coordinating the public safety response to natural disasters, homeland security activities, and other emergencies within the state;
    4. Coordinate the activities of all organizations for emergency management and homeland security within the state;
    5. Maintain liaison with and cooperate with emergency management agencies and organizations of other states and of the federal government;
    6. Through risk and threat assessments, coordinate plans for timely and complete responses through a network of state, local, and federal organizations, including, but not limited to, the coordination of efficient and timely flow of information;
    7. Be responsible for crisis and consequence management planning, including, but not limited to, measures to identify, acquire, and plan the use of resources needed to anticipate, prevent, or resolve a threat or act of terrorism;
    8. Coordinate and review activities involving homeland security within any agency, authority, or entity of this state, including, but not limited to, homeland security activities found within the Department of Public Safety, the Georgia Bureau of Investigation, the Georgia National Guard, the Department of Natural Resources, the Department of Community Health, and the Department of Public Health;
    9. Evaluate information developed by the criminal justice community in regard to threats or potential threats of terrorism;
    10. Serve as this state's security manager for the purpose of identifying and processing state personnel for security clearances through the United States Department of Homeland Security; and
    11. Have such additional authority, duties, and responsibilities authorized by Article 1, this article, and Article 3 of this chapter as may be prescribed by the Governor and such additional authority, duties, and responsibilities as described in Article 9 of Chapter 3 of Title 35 and Part 4 of Article 2 of Chapter 5 of Title 46, the "Georgia Emergency Telephone Number 9-1-1 Service Act of 1977," as amended.
  6. The director of emergency management and homeland security shall also be the disaster coordinator and shall act for the Governor when requested to do so.

(Ga. L. 1951, p. 224, § 4; Ga. L. 1953, Nov.-Dec. Sess., p. 171, § 2; Ga. L. 1981, p. 389, § 2; Ga. L. 1985, p. 468, § 1; Ga. L. 1992, p. 1258, § 3; Ga. L. 1998, p. 1017, § 1; Ga. L. 1999, p. 372, § 2; Ga. L. 2005, p. 660, § 7/HB 470; Ga. L. 2016, p. 91, § 6/SB 416; Ga. L. 2018, p. 681, § 1-2/HB 779.)

The 2016 amendment, effective July 1, 2016, throughout this Code section, inserted "and Homeland Security" and inserted "and homeland security"; in the middle of subsection (c), inserted "Article 9 of Chapter 3 of Title 35,"; and rewrote subsection (e).

The 2018 amendment, effective July 1, 2018, substituted "Title 35; Article 1, this article, and Article 3 of this chapter; and" for "Title 35, Article 1, this article, and Article 3 of this chapter," in the middle of subsection (c); substituted the present provisions of paragraph (e)(3) for the former provisions, which read: "Have command and control authority over all operational areas involving terrorist activity within this state, including, but not limited to, the Homeland Security Task Force and the Homeland Security Central Command when activated by the Governor;"; substituted "Through risk and threat assessments, coordinate" for "Oversee all risk and threat assessments and coordinate all" at the beginning of paragraph (e)(6); in paragraph (e)(8), deleted "all" preceding "activities" near the beginning, and deleted "oversight of" following "but not limited to," in the middle; deleted "and" at the end of paragraph (e)(9); added paragraph (e)(10); and redesignated former paragraph (e)(10) as present paragraph (e)(11).

Cross references.

- Department of Defense generally, § 38-2-130 et seq.

OPINIONS OF THE ATTORNEY GENERAL

Deputy director not subject to merit system.

- Deputy director of emergency management is not subject to merit system coverage because of the provisions of subsection (b). 1963-65 Op. Att'y Gen. p. 7 (issued prior to 1985 amendment, which substituted references to executive director for references to deputy director).

Position of deputy director for emergency management, being specifically excluded by law from the classified service, is not counted against the five discretionary positions which the adjutant general may designate for inclusion in the unclassified service. 1975 Op. Att'y Gen. No. 75-81 (issued prior to 1985 amendment, which substituted references to executive director for references to deputy director).

38-3-21. Director authorized to make rules and regulations.

Subject to the approval of the Governor, the director of emergency management shall be authorized to promulgate such rules and regulations as may be required to effectuate the purposes of Articles 1 through 3 of this chapter.

(Ga. L. 1973, p. 74, § 15; Ga. L. 1981, p. 389, § 2.)

38-3-22. Governor's emergency management powers and duties.

  1. The Governor shall have general direction and control of the Georgia Emergency Management and Homeland Security Agency and shall be responsible for the carrying out of the provisions of Article 1, this article, and Article 3 of this chapter and, in the event of disaster or emergency beyond local control, may assume direct operational control over all or any part of the emergency management functions within this state.
  2. In performing his duties under Articles 1 through 3 of this chapter, the Governor is further authorized and empowered:
    1. To make, amend, and rescind the necessary orders, rules, and regulations to carry out the provisions of Articles 1 through 3 of this chapter with due consideration to the plans of the federal government;
    2. To prepare a comprehensive plan and program for emergency management in this state, such plan and program to be integrated into and coordinated with the emergency management and preparedness plans of the federal government and of other states to the fullest possible extent; and to coordinate the preparation of plans and programs for emergency management by the political subdivisions of this state, such plans to be integrated into and coordinated with the emergency management plan and program of this state to the fullest possible extent;
    3. In accordance with the plan and program for emergency management in this state, to ascertain the requirements of the state or the political subdivisions thereof for food, clothing, and other necessities of life, in the event of a manmade or natural emergency or disaster, or enemy attack; to plan for and procure supplies, medicines, materials, and equipment, and to use and employ from time to time any of the property, services, and resources within the state for the purposes set forth in Articles 1 through 3 of this chapter; to make surveys of the industries, resources, and facilities within the state as are necessary to carry out the purposes of Articles 1 through 3 of this chapter; to institute training programs and public information programs, to take all other preparatory steps including the partial or full mobilization of emergency management organizations in advance of actual emergency or disaster, and to ensure the furnishing of adequately trained and equipped forces of emergency management personnel in time of need;
    4. To coordinate with the President, the heads of the armed forces, the agency or officers responsible for emergency management and defense of the United States, and the officers and agencies of other states, matters pertaining to emergency management in the state and nation and the incidents thereof; and in connection therewith, to take any measures which he may deem proper to carry into effect any request of the President and the appropriate federal officers and agencies for any action looking to emergency management, including the direction or control of emergency management exercises he deems necessary and appropriate for operational capability;
    5. To take such action and give such directions to state and local law enforcement officers and agencies as may be reasonable and necessary for the purpose of securing compliance with Articles 1 through 3 of this chapter and with the orders, rules, and regulations made pursuant thereto;
    6. To employ such measures and give such directions to the Department of Public Health and local boards of health as may be reasonably necessary for the purpose of securing compliance with Articles 1 through 3 of this chapter or with the findings or recommendations of the Department of Public Health and local boards of health by reason of conditions arising from emergencies or disasters, manmade or natural, or the threat of enemy attack or otherwise;
    7. To utilize the services and facilities of existing offices and agencies of the state and of the political subdivisions thereof; and all such offices and agencies shall cooperate with and extend their services and facilities to the Governor as he may request;
    8. To establish agencies and offices and to appoint executive, technical, clerical, and other personnel as may be necessary to carry out the provisions of Articles 1 through 3 of this chapter including, with due consideration to the recommendations of the local authorities, full-time state and regional area or field coordinators;
    9. To delegate any authority vested in him under Articles 1 through 3 of this chapter;
    10. On behalf of this state to enter into reciprocal aid agreements or compacts with other states and the federal government, either on a state-wide basis or local political subdivision basis or with a neighboring state. Such mutual aid arrangements shall include but not be limited to the furnishing or exchange of food, clothing, medicine, and other supplies; engineering services; emergency housing; police services; national or state guards while under the control of the state; health, medical, and related services; fire-fighting, rescue, transportation, and construction services and equipment; personnel necessary to provide or conduct these services; such other supplies, equipment, facilities, personnel, and services as may be needed; the reimbursement of costs and expenses for equipment, supplies, personnel, and similar items for mobile support units; and fire-fighting, police, and health units on such terms and conditions as are deemed necessary; and
    11. To sponsor and develop mutual aid plans and agreements between the political subdivisions of the state, similar to the mutual aid arrangements with other states referred to in paragraph (10) of this subsection.
  3. In addition to the emergency and disaster prevention measures included in the state and local emergency management plans, the Governor shall be empowered to make such studies, surveys, or analyses of potential emergency or disaster areas of the state as he deems necessary, both public and private, to prevent or reduce the harmful consequences of emergencies or disasters resulting from manmade or natural causes or from enemy attack; and to develop or cause to be developed measures to reduce the harmful consequences indicated in the studies, surveys, or analyses.

(Ga. L. 1951, p. 224, § 6; Ga. L. 1973, p. 74, § 3; Ga. L. 1981, p. 389, § 2; Ga. L. 1982, p. 3, § 38; Ga. L. 1992, p. 1258, § 4; Ga. L. 2009, p. 453, § 1-4/HB 228; Ga. L. 2011, p. 705, § 6-3/HB 214; Ga. L. 2016, p. 91, § 7/SB 416.)

The 2011 amendment, effective July 1, 2011, twice substituted "Department of Public Health" for "Department of Community Health" in paragraph (b)(6).

The 2016 amendment, effective July 1, 2016, inserted "and Homeland Security" near the beginning of subsection (a).

Cross references.

- Governor's power to postpone or extend qualifying periods for election during state of emergency, § 21-2-50.1.

Cooperation between Georgia and other states generally, T. 28, C. 6.

Further provisions regarding emergency powers of Governor, §§ 38-2-6,38-3-51,45-12-29 et seq.

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 147 (2011).

OPINIONS OF THE ATTORNEY GENERAL

Governor's authority.

- Designated local officials have the authority to require evacuation of citizens during a local emergency, but the Governor may exercise the Governor's authority over such an evacuation if the Governor believes the emergency is beyond local control or constitutes a "state of emergency." 1983 Op. Att'y Gen. No. 83-60.

Governor has authority to make the commitments specified in a hazard mitigation clause to be added by amendment to the Continuing Federal-State Agreement for Emergencies. 1980 Op. Att'y Gen. No. 80-93.

Delegation of responsibilities.

- Governor and director of civil defense (now emergency management) may delegate to the director (now commissioner) of the Board of Offender Rehabilitation their responsibilities with respect to emergency management. 1962 Op. Att'y Gen. p. 29.

Establishment of local organizations authorized.

- Governor has legal authority to authorize and direct the governing officials of the various counties to establish a local emergency management organization. 1962 Op. Att'y Gen. p. 27.

Registration of civilian aircraft authorized.

- Statute is a sufficient delegation of authority to warrant the issuance of a regulation requiring the registration of civilian aircraft. 1950-51 Op. Att'y Gen. p. 353 (see O.C.G.A. § 38-3-22).

38-3-22.1. Safety plan addressing threat of terrorism required of state agencies or authorities; exemptions; training and technical assistance; confidentiality of plans and related documentation.

  1. Every state agency or authority, except those exempted in subsection (b) of this Code section, shall prepare an agency safety plan to address the threat of terrorism, to respond effectively to such incidents, and to provide a safe environment for state personnel and for those citizens conducting business with state agencies. In addition to acts of terrorism, such plan shall also address preparedness for natural disasters, hazardous materials or radiological accidents, and acts of violence. The safety plans of agencies and authorities shall be prepared with input from the appropriate supervisors and rank-and-file employees and local law enforcement, fire service, public safety, and emergency management agencies. Such plans shall be reviewed internally and, if necessary, updated annually. Such plans shall be submitted to the local emergency management agency.
  2. The Department of Public Safety, the Department of Corrections, and any other state agency which operates secured facilities shall be exempt from the requirements of subsection (a) of this Code section.
  3. Subject to the availability of funds for such purpose, the Georgia Emergency Management and Homeland Security Agency shall provide training and technical assistance to agencies and authorities and may provide such training and technical assistance to local units of government and to critical facilities operated by the private sector. Such training and technical assistance shall include, but not be limited to, crisis response team development, site surveys and safety audits, crisis management planning, exercise design, safe school planning, emergency operations planning, search and seizure, bomb threat management, and model safety plans.
  4. The following records shall not be subject to public inspection or disclosure under Article 4 of Chapter 18 of Title 50:
    1. Site surveys, safety audits, and vulnerability assessments performed pursuant to subsection (a) of this Code section; and
    2. Any other record produced pursuant to this Code section the disclosure of which would, in the determination of the director of the Georgia Emergency Management and Homeland Security Agency, endanger the life or physical safety of any person or persons or the physical safety of any public property.

(Code 1981, §38-3-22.1, enacted by Ga. L. 2004, p. 743, § 1; Ga. L. 2016, p. 91, § 8/SB 416.)

The 2016 amendment, effective July 1, 2016, inserted "and Homeland Security" in the first sentence of subsection (c) and in the middle of paragraph (d)(2).

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2004, "operates" was substituted for "operate" in subsection (b).

38-3-22.2. Establishment of Airport Antiterrorism Training Committee; annual training.

Repealed by Ga. L. 2018, p. 681, § 1-3/HB 779, effective July 1, 2018.

Editor's notes.

- This Code section was based on Code 1981, § 38-3-22.2, enacted by Ga. L. 2004, p. 743, § 2; Ga. L. 2011, p. 632, § 3/HB 49; Ga. L. 2012, p. 775, § 38/HB 942.

38-3-23. Investigations and surveys; subpoena power; cooperation.

For the purpose of making surveys and investigations and obtaining information, except the investigation of subversive activities that are the responsibility of the Federal Bureau of Investigation, the Governor may compel by subpoena the attendance of witnesses and the production of books, papers, records, and documents of individuals, firms, associations, and corporations. All officers, boards, commissions, and departments of the state and the political subdivisions thereof having information with respect thereto shall cooperate with and assist him in making the investigations and surveys.

(Ga. L. 1951, p. 224, § 12.)

38-3-24. Traffic control; plans, regulations, and coordination.

The Governor may formulate and execute plans and regulations for the control of traffic in order to provide for the rapid and safe movement of evacuation over public highways and streets of people, troops, or vehicles and of materials for national defense or for use in any defense industry. He may coordinate the activities of the departments or agencies of the state and of the political subdivisions thereof concerned directly or indirectly with public highways and streets in a manner which will best effectuate such plans.

(Ga. L. 1951, p. 224, § 13.)

38-3-25. Lease or loan of state property for national or local purposes; transfer of state personnel; local authorities empowered to utilize property.

  1. Whenever the Governor deems it to be in the public interest and notwithstanding any inconsistent provision of law, he may:
    1. Authorize any department or agency of the state to lease or lend, on such terms and conditions as he may deem necessary to promote the public welfare and protect the interests of the state, any real or personal property of the state government to the President, the heads of the armed forces, or to the emergency management agency or officials of the United States; and
    2. Enter into a contract on behalf of the state for the lease or loan to any political subdivision of the state, on such terms and conditions as he may deem necessary to promote the public welfare and protect the interests of the state, of any real or personal property of the state government or the temporary transfer or employment of personnel of the state government to or by any political subdivision of the state.
  2. The mayor, chief executive, or executive body of each political subdivision of the state may, notwithstanding any inconsistent provision of law:
    1. Enter into a contract or lease with the state, or accept any loan, or employ personnel as provided in paragraph (2) of subsection (a) of this Code section. Furthermore, the political subdivision may equip, maintain, utilize, and operate any such property and employ necessary personnel therefor in accordance with the purposes for which the agreement was executed; and
    2. Do all things and perform any and all acts which he may deem necessary to effectuate the purpose for which the contract was entered into.

(Ga. L. 1951, p. 224, § 14; Ga. L. 1981, p. 389, § 2.)

38-3-26. Mobile support units; organization; rights, powers, duties, privileges, immunities, and compensation, of employees; reimbursement to localities and out-of-state units; service out of state.

  1. The Governor, or the director of emergency management at the request of the Governor, is authorized to create and establish such number of mobile support units as may be necessary to reinforce emergency management organizations in stricken areas and with due consideration of the plans of the federal government and of other states. He shall appoint a commander for each unit who shall have primary responsibility for the organization, administration, and operation of the unit. Mobile support units shall be called to duty upon orders of the Governor or the director and shall perform their functions in any part of the state or, upon the conditions specified in this Code section, in other states.
  2. Personnel of mobile support units while on duty, whether within or outside the state, shall:
    1. If they are employees of the state, have the powers, duties, rights, privileges, and immunities and receive the compensation incidental to their employment;
    2. If they are employees of a political subdivision of the state and, whether serving within or outside the political subdivision, have the powers, duties, rights, privileges, and immunities and receive the compensation incidental to their employment; and
    3. If they are not employees of the state or a political subdivision thereof, be entitled to adequate compensation incidental to their employment by the state for their services and to the same rights and immunities as are provided by law for the employees of this state. All personnel of mobile support units, while on duty, shall be subject to the operational control of the authority in charge of emergency management activities in the area in which they are serving and shall be reimbursed for all actual and necessary travel and subsistence expenses.
  3. The state shall reimburse a political subdivision for the compensation paid and actual and necessary travel, subsistence, and maintenance expenses of employees of the political subdivision while serving as members of a mobile unit; for all payments for death, disability, or injury of the employees incurred in the course of such duty; and for all losses of or damage to supplies and equipment of the political subdivision resulting from the operation of the mobile support unit.
  4. Whenever a mobile support unit of another state shall render aid in this state pursuant to the orders of the governor of its home state and upon the request of the Governor of this state, this state shall reimburse the other state for the compensation paid and actual and necessary travel, subsistence, and maintenance expenses of the personnel of the mobile support unit while rendering the aid; for all payments for death, disability, or injury of the personnel incurred in the course of rendering the aid; and for all losses of or damage to supplies and equipment of the other state or a political subdivision thereof resulting from the rendering of the aid; provided, however, that the laws of such other state contain provisions substantially similar to this Code section or that provisions to the foregoing effect are embodied in a reciprocal mutual aid agreement or compact or that the federal government has authorized or agreed to make reimbursement for the mutual aid as above provided.
  5. No personnel of mobile support units of this state shall be ordered by the Governor to operate in any other state unless the laws of the other state contain provisions substantially similar to this Code section, or unless the reciprocal mutual aid agreements or compacts include provisions providing for the reimbursement, or unless the reimbursement will be made by the federal government by law or agreement.

(Ga. L. 1951, p. 224, § 11; Ga. L. 1973, p. 74, § 7; Ga. L. 1981, p. 389, § 2.)

OPINIONS OF THE ATTORNEY GENERAL

Units for use only on call of Governor or director.

- Statute does not contemplate the use of equipment and personnel of mobile support units as adjunctions to city and county fire and police departments for training purposes, or otherwise except in "stricken areas" and upon call of the Governor or director. 1954-56 Op. Att'y Gen. p. 63. (see O.C.G.A. § 38-3-26).

Volunteers not subject to Ch. 9, T. 34. - Volunteer emergency management workers who do not receive compensation for their work are not subject to the Workers' Compensation Act (see O.C.G.A. Ch. 9, T. 34). 1962 Op. Att'y Gen. p. 611.

38-3-27. Local organizations for emergency management; creation; structure; powers; directors; appointment, qualifications, and compensation; state to provide financial assistance; entitlement for funding.

    1. The governing body of each county of this state may establish a local organization for emergency management in accordance with the state emergency management plan and program. If a county fails to establish an organization for emergency management in accordance with the state emergency management plan and program, any municipality in such county may establish its own organization for emergency management. In cases where a county has an organization for emergency management, such organization shall include participation by each city within the county unless the governing authority of any particular city elects to implement its own organization for emergency management. Any two or more of the above-mentioned political subdivisions may, with the approval of the director, contract with each other so as to form one emergency management organization for the entire area included in the bounds of the contracting political subdivisions. The executive officer or governing body of the political subdivision is authorized to nominate a local director to the director of emergency management who shall have the authority to make the appointment. The local director shall have direct responsibility for the organization, administration, and operation of the local organization for emergency management, subject to the direction and control of the executive officer or governing body and shall serve at the pleasure of such executive officer or governing body. Each local organization for emergency management shall perform emergency management functions within the territorial limits of the political subdivision within which it is organized and, in addition, shall conduct such functions outside of such territorial limits as may be required pursuant to Article 1, this article, and Article 3 of this chapter.
    2. A local director appointed pursuant to the provisions of paragraph (1) of this subsection who is paid a salary for full-time service as a director by the political subdivision or political subdivisions shall have the following minimum qualifications:
      1. The director shall be at least 21 years of age;
      2. The director shall not have been convicted of a felony. The executive officer or governing body of a political subdivision which nominates a local director shall furnish the director of emergency management two sets of fingerprints of the nominee. The director of emergency management shall forward fingerprints received concerning each nominee to the Georgia Crime Information Center of the Georgia Bureau of Investigation for the purpose of criminal identification through the fingerprint system of identification established by the Georgia Bureau of Investigation and the fingerprint system of identification established by the Federal Bureau of Investigation. The Georgia Crime Information Center shall report the findings of its records search and the records search of the Federal Bureau of Investigation to the director of emergency management;
      3. The director shall have completed a high school education or its equivalent and shall have successfully completed all initial courses required by the director of emergency management within 180 days following the date of nomination to office or within an extended period as determined by the director of emergency management and shall have successfully completed subsequent courses required by the director of emergency management within an appropriate period as determined by the director of emergency management;
      4. The director shall be capable of writing plans for responding to and recovering from disasters in his jurisdiction and shall be routinely available to respond to emergency scenes, command posts, or operation centers; to coordinate emergency response of public and private agencies and organizations; to attend training; and to attend meetings convened by the appointing authority or the director of emergency management; and
      5. The director shall not be self-employed or have any other occupation in the private sector which conflicts with his duties as a local director.
      1. If a local director appointed pursuant to the provisions of paragraph (1) of this subsection is a part-time director, such part-time director shall meet the minimum qualifications in subparagraphs (A) through (D) of paragraph (2) of this subsection. If such local director is employed under a 40 to 90 percent (time required on job) work contract, such local director shall be required to devote at least 80 hours per month on emergency management matters but not more than 30 hours in any one week during normal business hours of other county offices. If such local director is employed under a 25 to 39 percent (time required on job) work contract, such local director shall be required to devote at least 40 hours per month on emergency management matters but not more than 15 hours in any one week during normal business hours of other county offices.
      2. If the part-time paid director is also a part-time paid employee of the federal or state government, he must have written authorization from the appropriate appointing authority to hold the position of director and to comply with the provisions of subparagraph (A) of this paragraph and subparagraph (D) of paragraph (2) of this subsection.
      3. If the part-time paid director is also a part-time paid employee of county or municipal government in another capacity, that government must enact an order or ordinance specifying that such director will be permitted to comply with the provisions of subparagraph (A) of this paragraph and subparagraph (D) of paragraph (2) of this subsection. The order or ordinance shall also specify that the individual, when acting as director, shall relinquish authorities and responsibilities associated with his other governmental employment and shall name a person to assume those authorities and responsibilities until such time as the director shall cease to function as director. In no case shall the county or municipal government seek or receive any reimbursement for the part-time paid director's salary if such director is employed and compensated by the county or municipality in another capacity.
      4. If the part-time paid director is also a part-time paid employee in the private sector, he shall have a letter from his employer stating that he shall, without penalty, be permitted to comply with the provisions of subparagraph (A) of this paragraph and subparagraph (D) of paragraph (2) of this subsection.
      5. If the part-time paid director is self-employed, he must certify, by letter, that his schedule shall permit him to comply with the provisions of subparagraph (A) of this paragraph and subparagraph (D) of paragraph (2) of this subsection.
      6. Except as provided in this subparagraph, any director or deputy director of a local emergency management organization appointed after July 1, 1999, shall be a certified emergency manager under the Georgia Emergency Management and Homeland Security Agency's Certified Emergency Manager Program. The curriculum of the Certified Emergency Manager Program and requirements for certification shall be determined by the director of emergency management and homeland security and shall include, but not be limited to, professional development series training, independent study courses, emergency preparedness courses, and field-delivered courses. Certification may be obtained by an appointed director or deputy director within six months of his or her appointment. Certification shall expire biennially. As a condition of certification renewal, such emergency management personnel shall be required to satisfactorily complete continuing education requirements provided for in subparagraph (G) of this paragraph.
      7. Emergency management personnel certified under the Certified Emergency Manager Program shall complete annually a minimum of 24 hours of continuing education to maintain certification. The continuing education shall include programs and courses sponsored or approved by the director of emergency management. Personnel who lose their certification because of their failure to meet continuing education requirements will be eligible for recertification under provisions included in the Certified Emergency Manager Program.
    3. If a political subdivision has a volunteer director, the political subdivision shall furnish assistance to enable the volunteer director to carry out his duties outlined in this article and Article 3 of this chapter.
    4. The political subdivision shall designate an office in a building owned or leased by the political subdivision as the office of emergency management. Such office of emergency management shall have appropriate equipment and supplies, including but not limited to telephone and communication equipment, access to the 9-1-1 system if such system is operational in the political subdivision, desks, typewriters, file cabinets, and necessary office supplies. No such equipment or supplies shall be used for personal business. The local director shall post on the front door of the office the schedule of hours of the work week in which he will be attending to emergency management matters. The citizens of a political subdivision shall have accessibility to the office of emergency management and the local director or his designee shall be available or on call at all times beyond working hours.
    5. A local director whose salary is reimbursed in part or in full by the Georgia Emergency Management and Homeland Security Agency shall also meet all requirements which may be imposed by the federal emergency management agency or its successor.
    6. A local director who no longer meets the qualifications or complies with the requirements of this subsection may be removed by the director of emergency management.In any case where a local director is removed pursuant to this paragraph, the executive officer or governing body of the political subdivision shall nominate another local director.
  1. Each political subdivision shall have the power and authority:
    1. To appropriate and expend funds, to execute contracts, and to obtain and distribute equipment, materials, and supplies for emergency management purposes;
    2. To provide for the health and safety of persons and property, including emergency assistance to the victims of any emergency or disaster resulting from manmade or natural causes or enemy attack and to direct and coordinate the development of emergency management plans and programs in accordance with the policies and plans set by the federal and state emergency management agencies;
    3. To appoint, employ, remove, or provide, with or without compensation, chiefs of services, warning personnel, rescue teams, auxiliary fire and police personnel, and other emergency management workers;
    4. To establish a primary and one or more secondary control centers to serve as command posts during an emergency or disaster;
    5. Subject to the order of the Governor or the chief executive of the political subdivision, to assign and make available for duty the employees, property, or equipment of the subdivision relating to fire-fighting, engineering, rescue, health, medical, and related services and to police, transportation, construction, and similar items or services for emergency management purposes, within or outside of the physical limits of the subdivision;
    6. In addition to the heretofore stated powers and authorities, to acquire, temporarily or permanently, by purchase, lease, or otherwise, sites required for installation of temporary housing units for disaster victims; and to enter into whatever arrangements, including purchase, of temporary housing units and payment of transportation charges which are necessary to prepare or equip such sites to utilize the housing units.
  2. There is created a state fund to provide assistance to local organizations for emergency management which are authorized by subsections (a) and (b) of this Code section. The fund shall be used for the purpose of making grants to local emergency management organizations to enable them to purchase or otherwise obtain equipment which is needed for disaster preparedness. The fund shall be administered by the director of emergency management who, by rules and regulations, shall establish uniform criteria governing application for and the use of funds granted to local organizations for emergency management pursuant to this subsection. The rules and regulations shall include, but shall not be limited to, provisions:
    1. Requiring that, as a condition precedent to receiving a state grant pursuant to this subsection, an amount equal to the state grant shall be raised from local funds for the purchase of disaster preparedness equipment;
    2. Defining disaster preparedness equipment which shall qualify for purchase by the use of matching funds made available pursuant to this subsection;
    3. Establishing procedures and requirements governing the purchase of disaster preparedness equipment when matching funds made available pursuant to this subsection are used for the purchase;
    4. Establishing priorities governing grants made pursuant to this subsection which shall be based on the most effective and efficient use of disaster preparedness equipment purchased with matching funds made available pursuant to this subsection;
    5. Establishing forms, procedures, and requirements governing applications for grants pursuant to this subsection; and
    6. Prohibiting any single local emergency management organization from receiving more than 12 1/2 percent of the total funds annually appropriated to carry out this subsection.
  3. The funds necessary to carry out subsection (c) of this Code section shall come from funds specifically appropriated for such purpose by the General Assembly.
    1. To the extent funds are appropriated for such purpose by the General Assembly, the director of emergency management is authorized and directed to provide funds to counties or municipalities which operate a local emergency management organization as required by this Code section. No county or municipality shall be entitled to receive funds unless the local emergency management organization has met all of the state and federal requirements to be an emergency management organization qualified to receive federal funds, including:
      1. Legal establishment by local ordinance or resolution;
      2. A legally appointed local director who has been endorsed and approved by the state director of emergency management and appointed by the Governor;
      3. An approved emergency and disaster plan with all applicable annexes; and
      4. An approved fiscal year program paper and other necessary compliance documents.
    2. The amount provided to each county or municipality shall be equal to the amount of any shortfall in federal funding which results in federal funds which less than match (on a 50 percent=ndash50 percent basis) the amount budgeted by the county or municipality for the purpose of operating and maintaining the local emergency management organization.
    3. In the event sufficient state funds other than those from federal sources are not appropriated for a fiscal year to fund the full amount provided for in paragraph (2) of this subsection, then the amount which would otherwise be payable to each county and municipality shall be reduced pro rata on the basis of the funds actually appropriated.
    4. The director of emergency management is authorized and directed to adopt and promulgate appropriate rules and regulations to carry out this subsection.
    5. Funds to carry out this subsection shall come from funds appropriated to the Office of Planning and Budget specifically for the purposes of carrying out this subsection.
    1. After December 31, 1993, any county which fails at any time to have established a local organization for emergency management in accordance with the state emergency management plan and program shall not be entitled to any state funding for disaster relief assistance.
    2. After December 31, 1993, if a county has an organization for emergency management but a municipality within the county is not a part of the county's organization or plan and fails to have in place a local organization for emergency management in accordance with the state emergency management plan and program, such municipality shall not be entitled to any state funding for disaster relief assistance.

(Ga. L. 1951, p. 224, § 9; Ga. L. 1963, p. 473, § 1; Ga. L. 1973, p. 74, § 6; Ga. L. 1975, p. 1262, § 1; Ga. L. 1980, p. 1247, § 1; Ga. L. 1981, p. 389, § 2; Ga. L. 1981, p. 1802, § 1; Ga. L. 1982, p. 3, § 38; Ga. L. 1991, p. 654, §§ 1, 2; Ga. L. 1992, p. 6, § 38; Ga. L. 1992, p. 1258, §§ 5, 6; Ga. L. 1999, p. 372, § 3; Ga. L. 2005, p. 660, § 8/HB 470; Ga. L. 2009, p. 8, § 38/SB 46; Ga. L. 2016, p. 91, § 9/SB 416.)

The 2016 amendment, effective July 1, 2016, in subparagraph (a)(3)(F), inserted "and Homeland Security" in the first sentence and inserted "and homeland security" in the second sentence, and, in the middle of paragraph (a)(6), inserted "and Homeland Security".

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1999, "this" was substituted for "his" in the first sentence of subparagraph (a)(3)(F).

JUDICIAL DECISIONS

Cited in Meriwether County v. Creamer, 146 Ga. App. 651, 247 S.E.2d 178 (1978).

OPINIONS OF THE ATTORNEY GENERAL

Local governmental authority to enact emergency management ordinances.

- Local units of government have authority to enact ordinances for emergency management purposes so long as such ordinances do not conflict with the Georgia Emergency Management Act, see O.C.G.A. T. 38, Ch. 3, Arts. 1-3, but local units of government do not have authority to declare a state of emergency or to exercise the power of condemnation for emergency management purposes under that Act. 1989 Op. Att'y Gen. 89-53.

Authority to establish local organizations.

- There is statutory authority for a county commissioner to establish a local emergency management organization. 1962 Op. Att'y Gen. p. 27.

Ga. L. 1951, p. 224 authorizes city and county governments to appoint the various boards necessary to implement the Georgia plan for emergency management of resources. 1967 Op. Att'y Gen. No. 67-124.

Governor has legal authority to authorize and direct the governing officials of the various counties to establish local emergency management organizations. 1962 Op. Att'y Gen. p. 27.

Public corporation as local organization.

- Corporation to perform the functions of an emergency management agency would have to be created by an Act of the General Assembly, and would be a public corporation. 1954-56 Op. Att'y Gen. p. 63.

Appointment of local directors.

- Local emergency management directors are appointed by mayors of municipalities, and by commissioners for counties. 1958-59 Op. Att'y Gen. p. 314.

Disjunctive terminology of this section, i.e., "executive officer" vis-a-vis "governing body," was placed in the Act for the purpose of providing designations that would be appropriate to both municipal and county governments. As to municipalities, the word "executive officer" should be considered as controlling, whereas the words "governing body" primarily relate to counties. 1958-59 Op. Att'y Gen. p. 314 (see O.C.G.A. § 38-3-27).

Mayor of a municipality, not the city council, constitutes the "executive officer or governing body" responsible for nomination of a local director. 1958-59 Op. Att'y Gen. p. 314.

Definition of county organization's territorial jurisdiction.

- Upon establishing a county organization, the Governor or director will define its territorial jurisdiction. 1958-59 Op. Att'y Gen. p. 315.

Volunteers not subject to Ch. 9, T. 34. - Volunteer emergency management workers who do not receive compensation for their work are not subject to the Workers' Compensation Act (ee O.C.G.A. Ch. 9, T. 34). 1962 Op. Att'y Gen. p. 611.

Governor's authority over local evacuation efforts.

- Designated local officials have the authority to require evacuation of citizens during a local emergency, but the Governor may exercise his authority over such an evacuation if he believes the emergency is beyond local control or constitutes a "state of emergency." 1983 Op. Att'y Gen. No. 83-60.

"Executive officer or governing body" generally refers to the mayor of a municipality and county commission or board of commissioners of a county. 1982 Op. Att'y Gen. No. 82-19.

Operation of unit in county governed by county commission.

- In county which is governed by county commission, director of local emergency management unit is directly responsible for operating the unit during an emergency, but is to operate pursuant to general direction of county commission. 1982 Op. Att'y Gen. No. 82-19.

Eligibility for position of local director.

- Candidate for the position of local emergency management director who has been convicted of a felony and fully pardoned is not eligible to hold that position. 2000 Op. Att'y Gen. No. U2000-6.

RESEARCH REFERENCES

ALR.

- Governmental powers in peace-time emergency, 85 A.L.R. 1539; 88 A.L.R. 1519; 96 A.L.R. 312; 96 A.L.R. 826.

38-3-28. Authority of political subdivisions; filing of orders, rules, and regulations; effect; consideration of federal emergency management regulations.

  1. The political subdivisions of the state and other agencies designated or appointed by the Governor are authorized and empowered to make, amend, and rescind such orders, rules, and regulations as may be necessary for emergency management purposes and to supplement the carrying out of Articles 1 through 3 of this chapter, but not inconsistent with any orders, rules, or regulations promulgated by the Governor or by any state agency exercising a power delegated to it by him.
  2. All orders, rules, and regulations promulgated by the Governor, or by any political subdivision or other agency authorized by Articles 1 through 3 of this chapter to make orders, rules, and regulations, shall have the full force and effect of law when, in the event of issuance by the Governor or any state agency, a copy thereof is filed in the office of the Secretary of State or, if promulgated by a political subdivision of the state or agency thereof, when filed in the office of the clerk of the political subdivision or agency promulgating the same. All laws, ordinances, rules, and regulations inconsistent with Articles 1 through 3 of this chapter, or of any order, rule, or regulation issued under the authority of Articles 1 through 3 of this chapter, shall be suspended during the period of time and to the extent that the conflict exists.
  3. In order to attain uniformity so far as practicable throughout the country in measures taken to aid emergency management, all action taken under Articles 1 through 3 of this chapter and all orders, rules, and regulations made pursuant thereto shall be taken or made with due consideration to the orders, rules, regulations, actions, recommendations, and requests of federal authorities relevant thereto and, to the extent permitted by law, shall be consistent with such orders, rules, regulations, actions, recommendations, and requests.

(Ga. L. 1951, p. 224, § 15; Ga. L. 1981, p. 389, § 2.)

OPINIONS OF THE ATTORNEY GENERAL

Local governmental authority to enact emergency management ordinances.

- Local units of government have authority to enact ordinances for emergency management purposes so long as such ordinances do not conflict with the Georgia Emergency Management Act, O.C.G.A. T. 38, Ch. 3, Arts. 1-3, but local units of government do not have authority to declare a state of emergency or to exercise the power of condemnation for emergency management purposes under that Act. 1989 Op. Att'y Gen. 89-53.

38-3-29. Local mutual aid arrangements; out-of-state arrangements; conformity with state plan.

  1. The director of each local organization for emergency management, in collaboration with other public and private agencies within this state, may develop or cause to be developed mutual aid arrangements for reciprocal emergency management aid and assistance in case of emergency or disaster too great to be dealt with unassisted. The arrangements shall be consistent with the state emergency management plan and program, and in time of emergency it shall be the duty of each local organization for emergency management to render assistance in accordance with the mutual aid arrangements.
  2. The director of each local organization for emergency management, subject to the approval of the Governor, may enter into mutual aid arrangements with emergency management agencies or organizations in other states for reciprocal emergency management aid and assistance in case of emergency or disaster too great to be dealt with unassisted.

(Ga. L. 1951, p. 224, § 8; Ga. L. 1973, p. 74, § 5; Ga. L. 1981, p. 389, § 1.)

38-3-30. Aid rendered by local employees to other political subdivisions; reimbursement of personnel and equipment expenses by aided locality; procedure.

  1. Whenever the employees of any political subdivision are rendering outside aid pursuant to the authority contained in Code Section 38-3-27, the employees shall have the same powers, duties, rights, privileges, and immunities as if they were performing their duties in the political subdivisions in which they are normally employed.
  2. The political subdivision in which any equipment is used pursuant to this Code section shall be liable for any loss or damage thereto and shall pay any expense incurred in the operation and maintenance thereof. No claim for the loss, damage, or expense shall be allowed unless, within 60 days after the same is sustained or incurred, an itemized notice of the claim under oath is served by mail or otherwise upon the chief fiscal officer of the political subdivision where the equipment was used. The political subdivision which is aided pursuant to this Code section shall also pay and reimburse the political subdivision furnishing the aid for the compensation paid to employees furnished under this Code section during the time of the rendition of the aid and shall defray the actual traveling and maintenance expenses of the employees while they are rendering the aid. The reimbursement shall include any amounts paid or due for compensation due to personal injury or death while the employees are engaged in rendering the aid. The term "employee," as used in this Code section, shall mean, and this Code section shall apply with equal effect to, paid, volunteer, and auxiliary employees and emergency management workers.
  3. The foregoing rights, privileges, and obligations shall also apply in the event such aid is rendered outside the state, provided that payment or reimbursement in such case shall or may be made by the state or political subdivision receiving the aid pursuant to a reciprocal mutual-aid agreement or compact with the state or by the federal government.

(Ga. L. 1951, p. 224, § 10; Ga. L. 1981, p. 389, § 2.)

RESEARCH REFERENCES

ALR.

- Governmental powers in peace-time emergency, 85 A.L.R. 1539; 88 A.L.R. 1519; 96 A.L.R. 312; 96 A.L.R. 826.

38-3-31. Authority of state and localities to accept gifts, grants, or loans, from federal or private sources.

  1. Whenever the federal government or any agency or officer thereof offers to the state, or through the state to any political subdivision thereof, services, equipment, supplies, materials, or funds by way of gift, grant, or loan for purposes of emergency management, the state, acting through the Governor, or the political subdivision acting with the consent of the Governor and through its executive officer or governing body, may accept the offer. Upon the acceptance the Governor of the state or executive officer or governing body of the political subdivision may authorize any officer of the state or of the political subdivision, as the case may be, to receive the service, equipment, supplies, materials, or funds on behalf of the state or the political subdivision, subject to the terms of the offer and the rules and regulations, if any, of the agency making the offer.
  2. Whenever any person, firm, or corporation offers to the state or to any political subdivision thereof services, equipment, supplies, materials, or funds by way of gift, grant, or loan for purpose of emergency management, the state, acting through the Governor, or the political subdivision acting through its executive officer or governing body, may accept the offer. Upon the acceptance the Governor of the state or executive officer or governing body of the political subdivision may authorize any officer of the state or of the political subdivision, as the case may be, to receive the services, equipment, supplies, materials, or funds on behalf of the state or the political subdivision, subject to the terms of the offer.

(Ga. L. 1951, p. 224, § 18; Ga. L. 1981, p. 389, § 2.)

38-3-32. Sovereign immunity granted those who allow premises to be used for emergency management purposes; when.

When any person, firm, or corporation owning or controlling any real estate or other premises authorizes and permits any emergency management agency, board, or other authority of this state or of any political subdivision of this state to use the premises without charge therefor for the purpose of sheltering persons during an actual or practice emergency or disaster as contemplated by Articles 1 through 3 of this chapter, the person, firm, or corporation, at such times and for such periods during which the premises are occupied and actually employed for purpose of emergency management, shall be clothed with the sovereign immunity of the state. No civil action shall be brought or maintained against any such person, firm, or corporation to recover damages for personal injuries or death of any person while on the premises during an actual or practice emergency, disaster, or enemy attack, or for the loss or destruction of personal property brought upon the premises by any person seeking shelter thereon during an actual or practice emergency or disaster.

(Ga. L. 1953, Jan.-Feb. Sess., p. 354, § 1; Ga. L. 1974, p. 386, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

Statute is broadly worded and would apply to mining facilities as well as to other possible shelter areas. 1963-65 Op. Att'y Gen. p. 79 (see O.C.G.A. § 38-3-32).

38-3-33. Immunity granted those who provide equipment in emergencies.

Any person, including anyone in the business of selling or leasing new or used equipment, who provides equipment to the state or to any political subdivision of the state at no cost during an emergency or disaster situation, whether or not officially declared as such, for use in meeting any exigency caused by the emergency or disaster situation shall not be liable for any civil damages as a result of any act or omission by the person in providing the equipment.

(Ga. L. 1980, p. 1048, § 1.)

38-3-34. Emergency management personnel; qualifications; oath; who may administer.

  1. No person shall be employed or associated in any capacity in any emergency management organization established under Articles 1 through 3 of this chapter who advocates a change by force or violence in the constitutional form of the government of the United States or in this state or the overthrow of any government in the United States by force or violence; or who has been convicted of or is under indictment or accusation charging any subversive act against the United States.
  2. Before entering upon his duties, each person who is appointed to serve in an organization for emergency management shall take an oath in writing before a person authorized to administer oaths in this state, which oath shall be substantially as follows:

    "I ________________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of Georgia, against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties upon which I am about to enter.

    I do further swear (or affirm) that I do not advocate, nor am I a member of any political party or organization that advocates, the overthrow of the government of the United States or of this state by force or violence; and that during such time as I am a member of the (name of emergency management organization) I will not advocate nor become a member of any political party or organization that advocates the overthrow of the government of the United States or of this state by force or violence."

  3. For the purposes of Articles 1 through 3 of this chapter only, the executive heads of local organizations for emergency management and their duly appointed deputies and assistants are authorized to administer oaths to emergency management personnel.

(Ga. L. 1951, p. 224, §§ 19, 20; Ga. L. 1981, p. 389, § 2; Ga. L. 1982, p. 3, § 38.)

38-3-35. (See Editor's notes.) Immunity of state and political subdivisions; of emergency management workers.

  1. Neither the state nor any political subdivision of the state, nor the agents or representatives of the state or any political subdivision thereof, shall be liable for personal injury or property damage sustained by any person appointed or acting as a volunteer emergency management worker or member of any agency engaged in emergency management activity. The foregoing shall not affect the right of any person to receive benefits or compensation to which he might otherwise be entitled under Chapter 9 of Title 34, Code Section 38-3-30, any pension law, or any act of Congress.
  2. Neither the state nor any political subdivision of the state nor, except in cases of willful misconduct, gross negligence, or bad faith, the employees, agents, or representatives of the state or any political subdivision thereof, nor any volunteer or auxiliary emergency management worker or member of any agency engaged in any emergency management activity complying with or reasonably attempting to comply with Articles 1 through 3 of this chapter; or any order, rule, or regulation promulgated pursuant to Articles 1 through 3 of this chapter, or pursuant to any ordinance relating to precautionary measures enacted by any political provisions of Articles 1 through 3 of this chapter, or pursuant to any ordinance relating to precautionary measures enacted by any political subdivision of the state shall be liable for the death of or the injury to person or for damage to property as a result of any such activity.

(Ga. L. 1951, p. 224, § 17; Ga. L. 1973, p. 74, § 8; Ga. L. 1981, p. 389, § 2; Ga. L. 1982, p. 3, § 38.)

Cross references.

- Liability of law enforcement officers performing duties at scenes of emergencies, § 35-1-7.

Liability of members of fire departments for acts performed while fighting fires or performed at scenes of emergencies, § 51-1-30.

For application of this statute in 2020, see Executive Orders 04.14.20.01 and 04.20.20.01.

A listing of Executive Orders issued in 2020 can be found at https://gov.georgia.gov/executive-action/executive-orders/2020-executive-orders.

RESEARCH REFERENCES

C.J.S.

- 81A C.J.S., States, § 228.

ALR.

- Remedy available against invalid judgment in favor of United States, state, or other governmental unit immune to suit, 163 A.L.R. 244.

Validity and construction of legislation conferring personal immunity on public officers or employees for acts in course of duty, 163 A.L.R. 1435.

38-3-36. Director to license nongovernmental rescue organizations; exception; registration of public and private search and rescue dog teams.

  1. Except as otherwise provided by subsection (b) of this Code section, all nongovernmental rescue organizations, associations, groups, teams, search and rescue dog teams, or individuals, whether or not they are holders of a charter issued by this state or officers thereof, shall be prohibited from performing any rescue or emergency management type activity until the organization, association, group, team, search and rescue dog team, or individual has been licensed by the director of emergency management to perform the activities. It is expressly declared that Articles 1 through 3 of this chapter shall not amend, repeal, alter, or affect in any manner Code Section 51-1-29.
  2. Any marine rescue squadron sponsored by and operating under the direction and control of the sheriff of the county of residence of the squadron and chartered as a Marine Rescue Squadron of America, which was so chartered on January 1, 1960, or prior to that date, and which performs only water or boat safety rescue missions within this state, shall be deemed to be a governmental rescue organization within the meaning of subsection (a) of this Code section and need not be licensed by the director of emergency management as provided in the subsection.
  3. The director of emergency management shall promulgate rules and regulations for training and licensing standards for private search and rescue dog teams. The director shall maintain a registry of public and private search and rescue dog teams operating within the state. Any public or private organization which provides rescue services in this state utilizing search and rescue dog teams shall register with the director the name and address of the organization, a 24 hour telephone number to be used for contact during emergencies, the counties in which the search and rescue dog teams provide service, the types of specialized search and rescue dog teams which are available, and such other information as the director may require by rule and regulation.

(Ga. L. 1973, p. 74, § 14; Ga. L. 1974, p. 558, § 2; Ga. L. 1976, p. 1590, § 1; Ga. L. 1978, p. 1600, § 1; Ga. L. 1981, p. 389, § 2; Ga. L. 2000, p. 449, § 1.)

38-3-37. Prohibited actions by government official or employee during declared state of emergency.

  1. As used in this Code section, the term:
    1. "Firearm" means any handgun, rifle, shotgun, or similar device or weapon which will or can be converted to expel a projectile by the action of an explosive or electrical charge.
    2. "License holder" shall have the same meaning as set forth in Code Section 16-11-125.1.
    3. "Weapon" shall have the same meaning as set forth in Code Section 16-11-125.1.
  2. No official or employee of the state or any political subdivision thereof, member of the National Guard in the service of the state, or any person operating pursuant to or under color of state law, while acting during or pursuant to a declared state of emergency, shall:
    1. Temporarily or permanently seize, or authorize the seizure of, any firearm or ammunition or any component thereof the possession of which was not prohibited by law at the time immediately prior to the declaration of a state of emergency, other than as provided by the criminal or forfeiture laws of this state;
    2. Prohibit possession of any firearm or ammunition or any component thereof or promulgate any rule, regulation, or order prohibiting possession of any firearm or ammunition or any component thereof if such possession was not otherwise prohibited by law at the time immediately prior to the declaration of a state of emergency;
    3. Prohibit any license holder from carrying any weapon or promulgate any rule, regulation, or order prohibiting such carrying if such carrying was not otherwise prohibited by law at the time immediately prior to the declaration of a state of emergency; or
    4. Require the registration of any firearm.

(Code 1981, §38-3-37, enacted by Ga. L. 2014, p. 599, § 2-2/HB 60.)

Effective date.

- This Code section became effective July 1, 2014.

Cross references.

- Right to Keep and Bear Arms, US Const., amend. 2.

Editor's notes.

- Ga. L. 2014, p. 599, § 1-1/HB 60, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Safe Carry Protection Act.'"

Ga. L. 2014, p. 599, § 2-1/HB 60, not codified by the General Assembly, provides: "This part shall be known to be in honor of Representative Bobby Franklin."

Law reviews.

- For article on the 2014 enactment of this Code section, see 31 Ga. St. U. L. Rev. 47 (2014).

38-3-38. Entrance upon private property by Department of Corrections personnel during state of emergency or disaster.

During any state of emergency or state of disaster declared by the Governor pursuant to Code Section 38-3-51, Department of Corrections personnel and individuals in their custody and subject to their direction shall be authorized to enter upon private property following such declaration to the extent necessary for property protection, debris removal, restoration of services, and infrastructure repair and relocation; provided, however, that such personnel and individuals shall avoid interfering with the rights of private property owners and shall vacate such private property upon request of any owner thereof.

(Code 1981, §38-3-38, enacted by Ga. L. 2017, p. 416, § 1/HB 251.)

Effective date.

- This Code section became effective July 1, 2017.

ARTICLE 2A BOARD OF HOMELAND SECURITY

Effective date.

- This article became effective July 1, 2018.

38-3-40. Definitions.

As used in this article, the term:

  1. "Board" means the Board of Homeland Security.
  2. "Center" means the Georgia Information Sharing and Analysis Center.
  3. "Critical infrastructure" shall have the same meaning as set forth in Code Section 16-11-220.
  4. "Domestic terrorism" shall have the same meaning as set forth in Code Section 16-11-220.
  5. "Public transportation system" shall have the same meaning as set forth in Code Section 16-11-220.
  6. "Serious bodily harm" shall have the same meaning as set forth in Code Section 16-11-220.
  7. "State or government facility" shall have the same meaning as set forth in Code Section 16-11-220.

(Code 1981, §38-3-40, enacted by Ga. L. 2018, p. 681, § 1-4/HB 779.)

38-3-41. Creation; membership; allowances.

  1. There is created a Board of Homeland Security that shall, for administrative purposes only, be attached to the Georgia Emergency Management and Homeland Security Agency.
  2. The board shall consist of 16 members who shall be as follows:
    1. The Governor, ex officio, who shall be chairperson of the board;
    2. The director of emergency management and homeland security;
    3. The director of the Georgia Bureau of Investigation;
    4. The commissioner of public safety;
    5. The Attorney General or his or her designee who shall be the deputy attorney general or an assistant attorney general;
    6. The adjutant general;
    7. The commissioner of natural resources;
    8. The commissioner of public health;
    9. The State School Superintendent;
    10. The commissioner of transportation;
    11. The Commissioner of Agriculture;
    12. The executive director of the Georgia Technology Authority; and
    13. Five appointees of the Governor who shall be individuals from the public or private sector who are directly involved in policy, program, security, or funding activities relevant to homeland security or infrastructure protection; provided, however, that one such appointment shall be a sheriff, one such appointment shall be a member of the Senate, one such appointment shall be a member of the House of Representatives, and one such appointment shall be a chief executive of a law enforcement agency of a county or a municipality. Such appointees under this paragraph shall serve at the pleasure of the Governor.
    1. Any legislative members of the board who may be appointed pursuant to paragraph (13) of subsection (b) of this Code section shall receive the allowances provided for in Code Section 28-1-8.
    2. Members of the board who are state or local government officials, other than legislative members, or state or local government employees shall receive no compensation for their services on the board, but they may be reimbursed for expenses incurred by them in the performance of their duties as members of the board in the same manner as they are reimbursed for expenses in their capacities as state or local government officials or state or local government employees.
    3. Members of the board who are not legislators, state or local government officials, or state or local government employees shall receive a daily expense allowance in an amount the same as that specified in subsection (b) of Code Section 45-7-21, as well as the mileage or transportation allowance authorized for state employees.
    4. Funds for the reimbursement of the expenses of state or local government officials, other than legislative members, and state or local government employees shall come from funds appropriated to or otherwise available to their respective governments, departments, authorities, or agencies.

(Code 1981, §38-3-41, enacted by Ga. L. 2018, p. 681, § 1-4/HB 779.)

38-3-42. Board's duty to advise Governor; development of state-wide homeland security strategy; coordination with federal strategic guidance on homeland security; rules and regulations.

  1. The board shall advise the Governor on:
    1. The implementation of the homeland security strategy by state and local agencies and provide specific guidance and counsel for helping those agencies implement the strategy; and
    2. All matters related to the planning, development, coordination, and implementation of initiatives to promote the homeland security strategy of the state.
  2. The board shall develop a state-wide homeland security strategy that improves the state's ability to:
    1. Protect against, respond to, and recover from domestic terrorism and other homeland security threats and hazards; and
    2. Mitigate loss of life and property by lessening the impact of future homeland security threats and hazards.
  3. The board's homeland security strategy shall coordinate homeland security activities among and between local, state, and federal agencies and the private sector and shall include specific plans for:
    1. Intelligence gathering, analysis, and sharing;
    2. Reducing the state's vulnerability to domestic terrorism and other homeland security threats and hazards;
    3. Protecting critical infrastructure, public transportation systems, and state or government facilities;
    4. Protecting the state's ports and airports;
    5. Detecting, deterring, and defending against domestic terrorism and cyber, biological, chemical, and nuclear terrorism;
    6. Positioning equipment, technology, and personnel to improve the state's ability to respond to homeland security threats and hazards;
    7. Providing the center certain forms of authority to aid the Georgia Emergency Management and Homeland Security Agency in implementing the homeland security strategy of this state; and
    8. Using technological resources to:
      1. Facilitate the interoperability of governmental technology resources, including data, networks, and applications;
      2. Coordinate the warning and alert systems of state and local agencies;
      3. Incorporate multidisciplinary approaches to homeland security; and
      4. Improve the security of governmental and private sector information technology and information resources.
  4. The homeland security strategy shall complement and operate in coordination with federal strategic guidance on homeland security.
  5. The board shall adopt rules and regulations which shall be adopted, established, promulgated, amended, repealed, filed, and published in accordance with the applicable provisions and procedures set forth in Chapter 13 of Title 50, the "Georgia Administrative Procedure Act." The courts shall take judicial notice of any such rules or regulations. As used in this subsection, the term "rules and regulations" shall have the same meaning as the word "rule" as defined in paragraph (6) of Code Section 50-13-2.

(Code 1981, §38-3-42, enacted by Ga. L. 2018, p. 681, § 1-4/HB 779.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2018, "a" was deleted following "state's ability to respond to" in paragraph (c)(6).

ARTICLE 3 EMERGENCY POWERS

OPINIONS OF THE ATTORNEY GENERAL

Minimum age for participation in the rescue operations.

- There are no legal bars to amending rules and regulations of the Civil Defense Division (now Emergency Management Division) to lower minimum age for participating in Georgia civil defense (now emergency management) rescue operations from 18 to 16. 1981 Op. Att'y Gen. No. 81-73.

PART 1 G OVERNOR

Editor's notes.

- Ga. L. 2004, p. 420, § 3 designated the existing provisions of Article 3 of Chapter 3 of Title 38 as Part 1.

38-3-50. Emergency interim successors to various officials; necessity of declared emergency.

  1. As used in this Code section, the term:
    1. "Disaster" means any happening that causes great harm or damage.
    2. "Emergency" means a sudden generally unexpected occurrence or set of circumstances demanding immediate action.
    3. "Emergency interim successor" means a person designated pursuant to this Code section, in the event an officer is unavailable to exercise the powers and discharge the duties of an office, until a successor is appointed or elected and qualified as may be prescribed by the Constitution, statutes, laws, charters, and ordinances of this state and its political subdivisions, or until the lawful incumbent or his successor is able to resume the exercise of the powers and the discharge of the duties of the office.
    4. "Local offices and local officers" means positions in the political subdivisions of the state.
    5. "Office" means the position of head of any and all departments, agencies, boards, or commissions of the state or any of its political subdivisions; all constitutional General Assembly offices; all constitutional and other county offices; all of the judgeships of the state and its political subdivisions; and all of the positions in the legislative departments of the state or its political subdivisions.
    6. "Officer" means the individual who shall hold an office.
    7. "Political subdivisions" means cities, counties, towns, villages, authorities, and any other bodies created by the state and exercising any of the governmental powers of the state.
    8. "State office" and "state officer" mean positions in the government of this state.
    9. "Unavailable" means either that a vacancy in an office exists as the result of any emergency as defined in paragraph (2) of this subsection and there is no deputy or other successor authorized to exercise all of the powers and discharge all of the duties of the office, or that the lawful incumbent of the office, including any deputy exercising the powers and discharging the duties of an office because of a vacancy, and his duly authorized deputy are absent or unable to exercise the powers and discharge the duties of the office.
  2. All state officers shall within 30 days after taking office, in addition to any deputy authorized pursuant to law to exercise all of the powers and discharge the duties of office, designate by title individuals as emergency interim successors and specify their order of succession. The officer shall review and revise, as necessary, designations made pursuant to this Code section to ensure their current status. The officer will designate a sufficient number of such emergency interim successors so that there will be not less than three nor more than seven deputies or emergency interim successors or any combination thereof at any time. In the event that any state officer is unavailable following an emergency or disaster and in the event his deputy, if any, is also unavailable, the powers of his office shall be exercised and the duties of his office shall be discharged by his designated emergency interim successors in the order specified. The emergency successors shall exercise the powers and discharge the duties only until such time as the Governor under the Constitution or authority other than this Code section, or other official authorized under the Constitution or this Code section to exercise the powers and discharge the duties of the office of Governor, may, where a vacancy exists, appoint a successor to fill the vacancy or until a successor is otherwise appointed or elected and qualified as provided by law, or until an officer or his deputy or a preceding named emergency interim successor becomes available to exercise or resume the exercise of the powers and discharge the duties of his office.
  3. All emergency interim successors designated under this Code section shall have the same qualifications as are prescribed by law for the officer by whom they are designated.
  4. Designations of emergency interim successors to state officers shall become official upon the officer filing a list of the successors with the Secretary of State, who shall inform the Governor, the Georgia Emergency Management and Homeland Security Agency, all emergency interim successors to the officer involved, and the judge of the probate court of the county of legal residence of the successors of all such designations and any changes therein. Any designation of an emergency interim successor may be changed or altered by the officer concerned filing a notice of the change or alteration with the Secretary of State.
  5. All constitutional county officers shall within 30 days after taking office, in addition to any deputy authorized pursuant to law to exercise all the powers and discharge the duties of the office, designate by title individuals as emergency interim successors and specify their order of succession. The successors shall have the same powers, duties, and qualifications as specified by subsections (b) and (c) of this Code section for successors to state officers. Designations of the successors shall be made in the same manner as prescribed for successors to state officers in subsection (d) of this Code section.
  6. The legislative bodies of all political subdivisions of the state are authorized and directed to provide by ordinance or resolution for emergency interim successors for the officers of the political subdivisions. The resolutions and ordinances shall not be inconsistent with this Code section.
  7. At the time of their designation, emergency interim successors shall take such oath as may be required for them to exercise the powers and discharge the duties of the office to which they may succeed. Notwithstanding any other provision of law, no person, as a prerequisite to the exercise of the powers or discharge of the duties of an office to which he succeeds, shall be required to comply with any other provision of law relative to taking office.
  8. Emergency interim successors shall receive the same compensation as is paid the officer by whom they are appointed. The compensation shall be paid only during such time as a successor shall exercise the powers of the officer by whom he has been designated.
  9. Governmental powers shall be exercised by emergency interim successors appointed under this Code section only during a period of emergency or disaster, as defined by this Code section.

(Ga. L. 1958, p. 628, § 1; Ga. L. 1962, p. 469, § 1; Ga. L. 1973, p. 74, § 9; Ga. L. 1992, p. 1258, § 7; Ga. L. 2016, p. 91, § 10/SB 416.)

The 2016 amendment, effective July 1, 2016, inserted "and Homeland Security" in the middle of the first sentence of subsection (d).

OPINIONS OF THE ATTORNEY GENERAL

Interim successor to judge.

- Judge could name a person who is not a public official as the judge's interim successor. 1962 Op. Att'y Gen. p. 32.

Clerk of the superior court should appoint a successor even though the clerk already has four or five deputies as the deputy even though clerk positions as such would terminate when the principal was no longer in office. 1962 Op. Att'y Gen. p. 32.

County commissioners and other county officers have the authority and are directed to designate emergency interim successors for the purpose of continuity of government in the case of an emergency created by an enemy attack. 1965-66 Op. Att'y Gen. No. 66-242.

RESEARCH REFERENCES

ALR.

- Effect of declaring an emergency in the enactment of a law without declaring it free from the operation of the referendum, 7 A.L.R. 530.

38-3-51. (See Editor's notes.) Emergency powers of Governor; termination of emergency; limitations in energy emergency; immunity.

  1. In the event of actual or impending emergency or disaster of natural or human origin, or pandemic influenza emergency, or impending or actual enemy attack, or a public health emergency, within or affecting this state or against the United States, the Governor may declare that a state of emergency or disaster exists. As a condition precedent to declaring that a state of emergency or disaster exists as a result of a public health emergency, the Governor shall issue a call for a special session of the General Assembly pursuant to Article V, Section II, Paragraph VII of the Constitution of Georgia, which session shall convene at 8:00 A.M. on the second day following the date of such declaration for the purpose of concurring with or terminating the public health emergency. The state of emergency or disaster shall continue until the Governor finds that the threat or danger has passed or the emergency or disaster has been dealt with, to the extent that emergency or disaster conditions no longer exist, and terminates the state of emergency or disaster. No state of emergency or disaster may continue for longer than 30 days unless renewed by the Governor. The General Assembly by concurrent resolution may terminate a state of emergency or disaster at any time. Thereupon, the Governor shall by appropriate action end the state of emergency or disaster.
  2. A declaration of a state of emergency or disaster shall activate the emergency and disaster response and recovery aspects of the state and local emergency or disaster plans applicable to the political subdivision or area in question and shall be authority for the deployment and use of any forces to which the plan or plans apply and for use or distribution of any supplies, equipment, and materials and facilities assembled, stockpiled, or arranged to be made available pursuant to Articles 1 through 3 of this chapter or any other law relating to emergencies or disasters.
  3. The Governor shall have and may exercise for such period as the state of emergency or disaster exists or continues the following additional emergency powers:
    1. To enforce all laws, rules, and regulations relating to emergency management and to assume direct operational control of all civil forces and helpers in the state;
    2. To seize, take for temporary use, or condemn property for the protection of the public in accordance with condemnation proceedings as provided by law;
    3. To sell, lend, give, or distribute all or any such property among the inhabitants of the state and to account to the proper agency for any funds received for the property; and
    4. To perform and exercise such other functions, powers, and duties as may be deemed necessary to promote and secure the safety and protection of the civilian population.
  4. In addition to any other emergency powers conferred upon the Governor by law, he may:
    1. Suspend any regulatory statute prescribing the procedures for conduct of state business, or the orders, rules, or regulations of any state agency, if strict compliance with any statute, order, rule, or regulation would in any way prevent, hinder, or delay necessary action in coping with the emergency or disaster;
    2. Utilize all available resources of the state government and of each political subdivision of the state as reasonably necessary to cope with the emergency or disaster;
    3. Transfer the direction, personnel, or functions of state departments and agencies or units thereof for the purpose of performing or facilitating emergency services;
    4. Commandeer or utilize any private property if he finds this necessary to cope with the emergency or disaster;

      (4.1) Compel a health care facility to provide services or the use of its facility if such services or use are reasonable and necessary for emergency response. The use of such health care facility may include transferring the management and supervision of the health care facility to the Department of Public Health for a limited or unlimited period of time not extending beyond the termination of the public health emergency;

    5. Direct and compel the evacuation of all or part of the population from any stricken or threatened area within the state if he deems this action necessary for the preservation of life or other disaster mitigation, response, or recovery;
    6. Prescribe routes, modes of transportation, and destinations in connection with evacuation;
    7. Control ingress and egress to and from a disaster area, the movement of persons within the area, and the occupancy of premises therein;
    8. Suspend or limit the sale, dispensing, or transportation of alcoholic beverages, explosives, or combustibles; provided, however, that for purposes of this paragraph, the terms "explosives" and "combustibles" shall not include firearms or ammunition or any component thereof; and
    9. Make provision for the availability and use of temporary emergency housing.
  5. When the available funds are not sufficient for the purpose of paying the expenses incident to carrying out the provisions authorized by Articles 1 through 3 of this chapter, the Governor may transfer from any available fund in the state treasury such sum as may be necessary to meet the emergency or disaster; and the moneys so transferred shall be repaid to the fund from which transferred when moneys become available for that purpose by legislative appropriation or otherwise.
  6. In the event that the Governor proclaims an emergency or disaster, as defined by Articles 1 through 3 of this chapter, to be a catastrophe within the meaning of Article III, Section IX, Paragraph VI(b) of the Constitution of the state, the funds referred to in the paragraph may be utilized by the Governor for the purpose of carrying out the provisions authorized by Articles 1 through 3 of this chapter.
  7. In the event that the Governor proclaims an emergency or disaster, as defined in Articles 1 through 3 of this chapter, the Governor may provide welfare benefits to the citizens of this state in the form of grants to meet disaster related necessary expenses or serious needs of individuals or families adversely affected by an emergency or disaster in those cases where the individuals or families are unable to meet the expenses or needs from other means, provided that such grants are authorized only when matching federal funds are available for such purposes pursuant to the Disaster Relief Act of 1974 (Pub. L. 93-288).
  8. If the Governor declares a state of emergency solely because of an energy emergency, he shall not have the authority to:
    1. Seize, take for temporary use, or condemn property other than energy resources as authorized by paragraph (2) of subsection (c) of this Code section;
    2. Sell, lend, give, or distribute property other than energy resources as authorized by paragraph (3) of subsection (c) of this Code section; or
    3. Commandeer or utilize property other than energy resources as authorized by paragraph (4) of subsection (d) of this Code section.
    1. The Governor may direct the Department of Public Health to coordinate all matters pertaining to the response of the state to a public health emergency including without limitation:
      1. Planning and executing public health emergency assessments, mitigation, preparedness response, and recovery for the state;
      2. Coordinating public health emergency responses between state and local authorities;
      3. Collaborating with appropriate federal government authorities, elected officials of other states, private organizations, or private sector companies;
      4. Coordinating recovery operations and mitigation initiatives subsequent to public health emergencies;
      5. Organizing public information activities regarding state public health emergency response operations; and
      6. Providing for special identification for public health personnel involved in a public health emergency.
    2. The following due process procedures shall be applicable to any quarantine or vaccination program instituted pursuant to a declaration of a public health emergency:
      1. Consonant with maintenance of appropriate quarantine rules, the department shall permit access to counsel in person or by such other means as practicable that do not threaten the integrity of the quarantine;
      2. An order imposing a quarantine or a vaccination program may be appealed but shall not be stayed during the pendency of the challenge. The burden of proof shall be on the state to demonstrate that there exists a substantial risk of exposing other persons to imminent danger. With respect to vaccination, the state's burden of proof shall be met by clear and convincing evidence. With respect to quarantine, the state's burden of proof shall be met by a preponderance of the evidence;
      3. An individual or a class may challenge the order before any available judge of the superior courts in the county where the individual or a member of the class resides or in Fulton County. Such judge, upon attestation of the exigency of the circumstances, may proceed ex parte with respect to the state or may appoint counsel to represent the interests of the state or other unrepresented parties. The judge hearing the matter may consolidate a multiplicity of cases or, on the motion of a party or of the court, proceed to determine the interests of a class or classes. The rules of evidence applicable to civil cases shall be applied to the fullest extent practicable taking into account the circumstances of the emergency. All parties shall have the right to subpoena and cross-examine witnesses, but in enforcement of its subpoena powers the court shall take into account the circumstances of the emergency. All proceedings shall be transcribed to the extent practicable. Filing fees shall be waived and all costs borne by the state;
      4. The judge hearing the matter may enter an appropriate order upholding or suspending the quarantine or vaccination order. With respect to vaccination, the order may be applicable on notice to the department or its agents administering the vaccination, or otherwise in the court's discretion. With respect to quarantines, the order shall be automatically stayed for 48 hours;
      5. The department or any party may immediately appeal any order to the Supreme Court pursuant to paragraph (7) of subsection (a) of Code Section 5-6-34. The Supreme Court, or any available Justice thereof in the event that circumstances render a full court unavailable, shall consider the appeal on an expedited basis and may suspend any time requirements for the parties to file briefs. In the event no Justice is available, then a panel of the Court of Appeals, or any Judge thereof in the event that circumstances render a panel unavailable, shall consider the appeal on an expedited basis and may suspend any time requirements for the parties to file briefs. If the trial judge has proceeded ex parte or with counsel appointed for the state, the trial court shall either direct the filing of an appeal in its order or itself certify the order for appeal. Filing fees for appeal shall be waived, all costs shall be borne by the state, and such appeals shall be heard expeditiously; and
      6. No provisions of this paragraph shall be construed to limit or restrict the right of habeas corpus under the laws of the United States.
  9. Any individual, partnership, association, or corporation who acts in accordance with an order, rule, or regulation entered by the Governor pursuant to the authority granted by this Code section will not be held liable to any other individual, partnership, association, or corporation by reason thereof in any action seeking legal or equitable relief.

(Ga. L. 1951, p. 224, § 7; Ga. L. 1973, p. 74, § 4; Ga. L. 1974, p. 558, § 1; Ga. L. 1975, p. 1551, § 1; Ga. L. 1977, p. 192, §§ 2, 3; Ga. L. 1981, p. 389, § 2; Ga. L. 1983, p. 3, § 59; Ga. L. 2002, p. 1386, §§ 12-15; Ga. L. 2009, p. 184, § 4/HB 217; Ga. L. 2009, p. 453, § 1-4/HB 228; Ga. L. 2011, p. 701, § 1/HB 339; Ga. L. 2011, p. 705, § 6-3/HB 214; Ga. L. 2014, p. 599, § 2-3/HB 60.)

The 2011 amendments. The first 2011 amendment, effective July 1, 2011, substituted "judge of the superior courts in the county where the individual or a member of the class resides or in Fulton County" for "judge of the state courts, the superior courts, the Court of Appeals, or the Supreme Court" in the first sentence of subparagraph (i)(2)(C); and, in subparagraph (i)(2)(E), substituted the present first and second sentences for the former first sentence, which read: "The department or any party may appeal any order within 24 hours to the Court of Appeals, the Supreme Court, or to any available judge thereof in the event that circumstances render a full court unavailable.", and added the third sentence. The second 2011 amendment, effective July 1, 2011, substituted "Department of Public Health" for "Department of Community Health" in paragraph (d)(4.1), and in the introductory language of paragraph (i)(1).

The 2014 amendment, effective July 1, 2014, substituted the present provisions of paragraph (d)(8) for the former provisions, which read: "Suspend or limit the sale, dispensing, or transportation of alcoholic beverages, firearms, explosives, and combustibles; provided, however, that any limitation on firearms under this Code section shall not include an individual firearm owned by a private citizen which was legal and owned by that citizen prior to the declaration of state of emergency or disaster or thereafter acquired in compliance with all applicable laws of this state and the United States; and".

Cross references.

- Governor's power to postpone or extend qualifying periods for election during state of emergency, § 21-2-50.1.

For further provisions regarding emergency powers of Governor, §§ 38-2-6,38-3-22,45-12-29 et seq.

Power of Public Service Commission to allocate utility service so as to protect public health, safety, and welfare, § 46-2-71.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2004, "Article V, Section II" was substituted for "Article II, Section V" in subsection (a).

Editor's notes.

- Ga. L. 2014, p. 599, § 1-1/HB 60, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Safe Carry Protection Act.'"

Ga. L. 2014, p. 599, § 2-1/HB 60, not codified by the General Assembly, provides: "This part shall be known to be in honor of Representative Bobby Franklin."

For application of this statute in 2020, see Executive Order 04.20.20.01.

A listing of Executive Orders issued in 2020 can be found at https://gov.georgia.gov/executive-action/executive-orders/2020-executive-orders.

U.S. Code.

- The federal Disaster Relief Act of 1974, referred to in subsection (g) of this Code section, is codified at 42 U.S.C. § 3231 et seq., and 42 U.S.C. § 5121 et seq.

Law reviews.

- For article, "Is Georgia Prepared for a Health Pandemic? Legal Issues Regarding Emergency Preparedness and Declaration of Emergency Health Pandemic in Georgia," see 15 (No. 6) Ga. St. B.J. 30 (2010). For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 147 (2011). For article on the 2014 amendment of this Code section, see 31 Ga. St. U. L. Rev. 47 (2014). For article, "Lurching from Complacency to Panic in the Fight Against Dangerous Microbes: A Blueprint for a Common Secure Future," see 67 Emory L.J. 337 (2018). For article, "The Case for Streamlining Emergency Declaration Authorities and Adapting Legal Requirements to Ever-Changing Public Health Threats," see 67 Emory L.J. 397 (2018). For article, "Do State Lines Make Public Health Emergencies Worse? Federal Versus State Control of Quarantine," see 67 Emory L.J. 491 (2018). For note on the 2002 amendment of this Code section, see 19 Georgia. St. U. L. Rev. 1 (2002).

OPINIONS OF THE ATTORNEY GENERAL

Constitutionality

- Provisions of this statute authorizing the Governor to make grants to individuals under certain prescribed conditions are not inconsistent with the state Constitution. 1975 Op. Att'y Gen. No. 75-147 (see O.C.G.A. § 38-3-51).

RESEARCH REFERENCES

C.J.S.

- 81A C.J.S., States, § 328 et seq.

ALR.

- Recovery of cumulative statutory penalties, 71 A.L.R.2d 986.

38-3-52. Emergency locations - State government; proclamation; effect of official acts.

  1. Whenever, due to an emergency or disaster resulting from manmade or natural causes or enemy attack, it becomes imprudent, inexpedient, or impossible to conduct the affairs of state government at the normal location of the seat thereof in Atlanta, Fulton County, the Governor, as often as the exigencies of the situation require, shall by proclamation declare an emergency temporary location or locations for the seat of government at such place or places within or outside this state as he may deem advisable under the circumstances and shall take such action and issue such orders as may be necessary for an orderly transition of the affairs of state government to the emergency temporary location or locations. The emergency temporary location or locations shall remain as the seat of government until the General Assembly shall by law establish a new location or locations or until the emergency or disaster is declared to be ended by the Governor and the seat of government is returned to its normal location.
  2. During such time as the seat of government remains at the emergency temporary location or locations, all official acts required by law to be performed at the seat of government by any officer, agency, department, or authority in this state, including the convening and meeting of the General Assembly, shall be as valid and binding when performed at the emergency temporary location or locations as if performed at the normal location of the seat of government.

(Ga. L. 1958, p. 691, § 1; Ga. L. 1962, p. 475, § 1; Ga. L. 1973, p. 74, § 10.)

38-3-53. Emergency locations - Meeting of General Assembly; call; suspension of constitutional rules.

The General Assembly shall meet at the new location provided for in Code Section 38-3-52 either upon the call of the Governor or, if no call is issued, through the initiative of the members thereof following an emergency or disaster resulting from manmade or natural causes or enemy attack impending or affecting this state. At such time the General Assembly shall not be limited by any constitutional provisions relating to length of sessions, and it may suspend the operation of any and all constitutional rules governing the procedure of both the House of Representatives and the Senate as it deems necessary during the period of emergency or disaster.

(Ga. L. 1962, p. 473, § 1; Ga. L. 1973, p. 74, § 11.)

38-3-54. Emergency locations - Local government; who may call meeting; effect of acts.

Whenever, due to an emergency or disaster resulting from manmade or natural causes or enemy attack, it becomes imprudent, inexpedient, or impossible to conduct the affairs of local government at the regular or usual place or places thereof, the governing body of each political subdivision, including but not limited to each and every city, county, and municipality of the state, may meet at any place within or outside the territorial limits of the political subdivision on the call of the presiding officer or any two members of the governing body and shall proceed to establish and designate by ordinance, resolution, or other manner alternate or substitute sites or places as the emergency temporary location or locations of government where all or any part of the public business may be transacted and conducted during the emergency or disaster situation. The sites or places may be within or outside the territorial limits of the political subdivision and may be within or outside this state. During the period when the public business is being conducted at the emergency temporary location or locations, the governing body and other officers of a political subdivision of this state shall have and possess and shall exercise at the location or locations all of the executive, legislative, and judicial powers and functions conferred upon such body and officers by or under the laws of this state. The powers and functions may be exercised in the light of the exigencies of the emergency situation without regard to or compliance with time-consuming procedures and formalities prescribed by law and pertaining thereto, and all acts of the body and officers shall be as valid and binding as if performed within the territorial limits of their political subdivision.

(Ga. L. 1962, p. 473, § 1; Ga. L. 1973, p. 74, § 12.)

38-3-55. Emergency locations - When authorized; proclamation.

The provisions of Code Sections 38-3-52 through 38-3-54 shall be operative only in the event and for the duration of an emergency or disaster of manmade or natural causes or enemy attack impending on or affecting this state or the United States, as proclaimed by an appropriate state official.

(Ga. L. 1962, p. 473, § 3; Ga. L. 1973, p. 74, § 13.)

38-3-56. Registration of businesses during emergency.

Notwithstanding any other provisions of law, the governing authority of any county or municipality may provide by ordinance for a program of emergency registration of all or certain designated classes of businesses doing business in the county or municipality during a state of emergency declared by the Governor. Such ordinance may be implemented for a period during which the state of emergency continues and for a subsequent recovery period of up to three months at the direction of the governing authority. In any county or municipality adopting such an ordinance, no business subject to the ordinance may do business in the county or municipality without first registering in conformance with the provisions of the ordinance.

(Code 1981, §38-3-56, enacted by Ga. L. 1995, p. 1362, § 3.)

Law reviews.

- For note on the 1995 enactment of this Code section, see 12 Georgia. St. U.L. Rev. 31 (1995).

38-3-57. Establishment of standardized, verifiable, performance based unified incident command system; utilization; training; implementation; funding; first informer broadcasters.

  1. The Georgia Emergency Management and Homeland Security Agency shall establish and maintain, in collaboration with all appropriate state agencies and volunteer organizations with emergency support function roles and professional organizations that represent local public safety agencies, including the Emergency Management Association of Georgia, the Georgia Association of Police Chiefs, the Georgia Fire Chiefs' Association, and the Georgia Sheriffs' Association, a standardized, verifiable, performance based unified incident command system.
  2. Such system shall be consistent with the Georgia Emergency Operations Plan and shall be utilized in response to emergencies and disasters referenced in the Georgia Emergency Operations Plan, including presidentially declared disasters and states of emergency issued by the Governor.
  3. The Georgia Emergency Management and Homeland Security Agency, in cooperation with the Georgia Public Safety Training Center and the State Forestry Commission, shall develop or adopt a course of instruction for use in training and certifying emergency response personnel in unified incident command.
  4. All local public safety and emergency response organizations, including emergency management agencies, law enforcement agencies, fire departments, and emergency medical services, shall implement the standardized unified incident command system provided for in subsection (a) of this Code section by October 1, 2004.
  5. Local agencies that have not established such system by October 1, 2004, shall not be eligible for state reimbursement for any response or recovery related expenses.
    1. As used in this subsection, the term:
      1. "Broadcaster" means any corporation or other entity that is primarily engaged in the business of broadcasting video or audio programming, whether through the public airwaves, cable, direct or indirect satellite transmission, or any other similar means of communication.
      2. "Emergency" means the declaration of a state of emergency or disaster as provided in Code Section 38-3-51 or as presidentially declared.
      3. "First informer broadcaster" means a broadcaster in Georgia who makes application to the Georgia Emergency Management and Homeland Security Agency for designation as a first informer broadcaster and who is granted such designation as a first informer broadcaster pursuant to rules and regulations promulgated by the director of emergency management and homeland security.
    2. The unified incident command system and the Georgia Emergency Operations Plan shall, by July 1, 2016, establish planning for first informer broadcasters such that first informer broadcasters, to any extent practicable, may during an emergency:
      1. Have access to areas affected by an emergency for the purpose of restoring, repairing, or resupplying any facility or equipment critical to the ability of a broadcaster to acquire, produce, or transmit emergency related programming, including but not limited to repairing and maintaining transmitters and generators and transporting fuel for generators;
      2. Have access to the distribution of fuel, food, water, supplies, equipment, and any other materials necessary for maintaining or producing a broadcast or broadcasting signal; and
      3. Not have vehicles, fuel, food, water, and any other materials seized or condemned that are essential for maintaining or producing a broadcast or broadcasting signal.
    3. The Georgia Emergency Management and Homeland Security Agency may develop or adopt courses of instruction for use in training personnel of first informer broadcasters on personal safety and navigation in an area affected by an emergency. The requirements of any such training shall be established pursuant to rules and regulations promulgated by the director of emergency management and homeland security. The costs of any such training shall be paid by the first informer broadcasters participating in the training.

(Code 1981, §38-3-57, enacted by Ga. L. 2004, p. 743, § 3; Ga. L. 2012, p. 775, § 38/HB 942; Ga. L. 2014, p. 680, § 2/SB 381; Ga. L. 2016, p. 91, § 11/SB 416.)

The 2012 amendment, effective May 1, 2012, part of an Act to revise, modernize, and correct the Code, substituted "the State Forestry Commission," for "the Georgia Forestry Commission," in subsection (c).

The 2014 amendment, effective July 1, 2014, added subsection (f).

The 2016 amendment, effective July 1, 2016, throughout this Code section, inserted "and Homeland Security" and inserted "and homeland security".

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2004, "roles" was substituted for "roles," and "performance based" was substituted for "performance-based" in subsection (a); and "presidentially" was substituted for "Presidentially" in subsection (b).

Editor's notes.

- Ga. L. 2014, p. 680, § 1/SB 381, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Georgia First Informer Broadcasters Act.'"

38-3-58. "Essentials" defined; system to facilitate transport and distribution; certification.

  1. As used in this Code section, the term "essentials" means goods that are consumed or used as a direct result of a state of emergency declared by the Governor or that are consumed or used to preserve, protect, or sustain life, health, safety, or economic well-being.
  2. Notwithstanding Code Section 38-3-56, the Georgia Emergency Management and Homeland Security Agency shall establish a state-wide system to facilitate the transport and distribution of essentials in commerce during a state of emergency declared by the Governor for the purpose of meeting the needs of the residents of this state during such an emergency and to ensure the continuing economic resilience of communities impacted by such an emergency.
  3. In conformance with subsection (b) of this Code section, such system shall provide for a certification of organizations and business entities that facilitate, or are likely to facilitate, the transport or distribution of essentials where such certification shall apply to all employees or agents of such organizations and business entities who, as designated by such organizations and business entities, are employed to facilitate the transport or distribution of essentials. In providing for such certification, the Georgia Emergency Management and Homeland Security Agency:
    1. May provide for a preemergency or postemergency certification;
    2. May rely on information provided for by bona fide employers in this state about the jobs performed by their employees relating to essentials;
    3. Shall create easily recognizable indicia of certification to assist the efforts of local officials in determining the employees and agents of such organizations and business entities which are certified pursuant to this Code section; and
    4. May provide for an electronic certification process and an electronic distribution of the recognizable indicia of certification.
  4. Except as provided for in this Code section, the Georgia Emergency Management and Homeland Security Agency shall not require any organization, business entity, or individual to obtain any additional certification or to fulfill any additional requirement to transport or distribute essentials in commerce during a state of emergency declared by the Governor.
  5. Notwithstanding any established curfew, a designated employee or agent of an organization or business entity certified pursuant to this Code section may enter or remain in a curfew area beyond the restrictions of the curfew for the limited purpose of facilitating the transport or distribution of essentials. Nothing in this Code section shall be construed to prohibit the Georgia Emergency Management and Homeland Security Agency or local officials from specifying a permissible route of ingress or egress or from denying access to an area in order to preserve, protect, or sustain the life, health, safety, or economic well-being of a person or property or from granting access as otherwise deemed necessary.
    1. The Georgia Emergency Management and Homeland Security Agency may suspend or revoke certification granted pursuant to this Code section as a result of any violation or abuse of this certification. If the suspension is based on a reported violation or abuse, the Georgia Emergency Management and Homeland Security Agency shall investigate the reported violation or abuse in a timely manner.
    2. If the Georgia Emergency Management and Homeland Security Agency suspends or revokes a certification, such agency shall communicate the cause of the suspension or revocation to the certified organization or business entity as provided for in subsection (c) of this Code section. If the suspension is based on a reported violation, the Georgia Emergency Management and Homeland Security Agency shall investigate the reported violation in a timely manner to determine whether the reported violation occurred.

(Code 1981, §38-3-58, enacted by Ga. L. 2017, p. 740, § 1/HB 405.)

Effective date.

- This Code section became effective July 1, 2017.

Law reviews.

- For annual survey on administrative law, see 69 Mercer L. Rev. 15 (2017).

PART 2 J UDICIAL EMERGENCY

Cross references.

- War on Terrorism Local Assistance, T. 36, C. 75.

Court security and emergency operations, Ga. Unif. Super. Ct. 45.

Practicing law when emergencies impact justice system, Ga. S. Ct. 121.

Editor's notes.

- Ga. L. 2004, p. 420, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Judicial Emergency Act of 2004.'"

Ga. L. 2004, p. 420, § 2, not codified by the General Assembly, provides that: "The General Assembly finds that the proper functioning of this state's judicial system is essential to the administration of justice. Further, the General Assembly finds that our courts are subject to being disrupted and the rights of the people are subject to being denied in the event of certain attacks or emergencies, whether natural or man-made in origin. The General Assembly finds that it is in the best interests of the proper functioning of the courts and, ultimately, of the people, to provide our judicial system with a means by which to adjust certain rights, deadlines, and schedules to take into account the potentially devastating effects of a judicial emergency."

38-3-60. Definitions.

As used in this part, the term:

  1. "Authorized judicial official" means any of the following officials when acting with regard to his or her respective jurisdiction:
    1. The Chief Justice of the Georgia Supreme Court;
    2. A chief judge of a Georgia superior court judicial circuit; or
    3. The replacement for or successor to any of the officials set forth in subparagraphs (A) and (B) of this paragraph, as determined by the applicable rules of incapacitation and succession, should such official become incapacitated or otherwise unable to act.
  2. "Judicial emergency" means:
    1. A state of emergency declared by the Governor under Part 1 of this article;
    2. A public health emergency under Code Section 31-12-1.1;
    3. A local emergency under Code Section 36-69-2; or
    4. Such other serious emergency

      when, as determined by an authorized judicial official, the emergency substantially endangers or infringes upon the normal functioning of the judicial system, the ability of persons to avail themselves of the judicial system, or the ability of litigants or others to have access to the courts or to meet schedules or time deadlines imposed by court order or rule, statute, or administrative rule or regulation.

(Code 1981, §38-3-60, enacted by Ga. L. 2004, p. 420, § 3; Ga. L. 2011, p. 701, § 2/HB 339.)

The 2011 amendment, effective July 1, 2011, in paragraph (1), deleted former subparagraph (1)(B), which read: "(B) The Chief Judge of the Georgia Court of Appeals;"; redesignated former subparagraphs (1)(C) and (1)(D) as present subparagraphs (1)(B) and (1)(C), respectively, and substituted "subparagraphs (A) and (B)" for "subparagraphs (A) through (C)" in present subparagraph (1)(C).

Cross references.

- Provision of legal services following determination of major disaster, S. Ct. R. 121.

JUDICIAL DECISIONS

Cited in Smith v. Smith, 350 Ga. App. 647, 829 S.E.2d 886 (2019).

38-3-61. Declaration of judicial emergency; duration of judicial emergency declaration; designation of alternative facility in lieu of court.

  1. An authorized judicial official is authorized to declare the existence of a judicial emergency which shall be done by order either upon his or her own motion or upon motion by any interested person. The order shall state:
    1. The identity and position of the issuing authorized judicial official;
    2. The time, date, and place at which the order is executed;
    3. The jurisdiction or jurisdictions affected by the order;
    4. The nature of the emergency necessitating the order;
    5. The period or duration of the judicial emergency; and
    6. Any other information relevant to the suspension or restoration of court operations.
  2. An order declaring the existence of a judicial emergency shall be limited to an initial duration of not more than 30 days; provided, however, that the order may be modified or extended for no more than two periods not exceeding 30 days each unless a public health emergency exists as set forth in Code Section 38-3-51, in which case the Chief Justice of the Supreme Court of Georgia may extend the emergency order for so long as such emergency exists, as declared by the Governor. Any modification or extension of the initial order shall require information regarding the same matters set forth in subsection (a) of this Code section for the issuance of the initial order.
  3. In the event the circumstances underlying the judicial emergency make access to the office of a clerk of court or a courthouse impossible or impractical, the order declaring the judicial emergency shall designate another facility, which is reasonably accessible and appropriate, for the conduct of court business.

(Code 1981, §38-3-61, enacted by Ga. L. 2004, p. 420, § 3; Ga. L. 2011, p. 701, § 3/HB 339.)

The 2011 amendment, effective July 1, 2011, added "unless a public health emergency exists as set forth in Code Section 38-3-51, in which case the Chief Justice of the Supreme Court of Georgia may extend the emergency order for so long as such emergency exists, as declared by the Governor" at the end of the first sentence of subsection (b).

38-3-62. Suspension or tolling of deadlines and time schedules in event of judicial emergency.

An authorized judicial official in an order declaring a judicial emergency, or in an order modifying or extending a judicial emergency order, is authorized to suspend, toll, extend, or otherwise grant relief from deadlines or other time schedules or filing requirements imposed by otherwise applicable statutes, rules, regulations, or court orders, whether in civil or criminal cases or administrative matters, including, but not limited to:

  1. A statute of limitation;
  2. The time within which to issue a warrant;
  3. The time within which to try a case for which a demand for speedy trial has been filed;
  4. The time within which to hold a commitment hearing;
  5. A deadline or other schedule regarding the detention of a juvenile;
  6. The time within which to return a bill of indictment or an accusation or to bring a matter before a grand jury;
  7. The time within which to file a writ of habeas corpus;
  8. The time within which discovery or any aspect thereof is to be completed;
  9. The time within which to serve a party;
  10. The time within which to appeal or to seek the right to appeal any order, ruling, or other determination; and
  11. Such other legal proceedings as determined to be necessary by the authorized judicial official.

(Code 1981, §38-3-62, enacted by Ga. L. 2004, p. 420, § 3; Ga. L. 2006, p. 893, § 6/HB 1421.)

JUDICIAL DECISIONS

Cited in Smith v. Smith, 350 Ga. App. 647, 829 S.E.2d 886 (2019).

38-3-63. Notification to other judicial officials and public.

Upon an authorized judicial official issuing an order declaring the existence of a judicial emergency, or any modification or extension of such an order, the authorized judicial official issuing the order, modification, or extension to the extent permitted by the circumstances underlying the judicial emergency shall:

  1. Immediately notify the Chief Justice of the Georgia Supreme Court of the action;
  2. Notify and serve a copy of the order, modification, or extension on the judges and clerks of all courts sitting within the jurisdictions affected and on the clerks of the Georgia Court of Appeals and the Georgia Supreme Court, such service to be accomplished through reasonable means to assure expeditious receipt; and
  3. Give notice of the issuance of the order, modification, or extension to the affected parties, counsel for the affected parties, and the public. Notice shall be provided by whatever means are reasonably calculated to reach the affected parties, counsel for the affected parties, and the public and may, without limitation, include mailing, publication in a newspaper of local or state-wide distribution, posting of written notices at courthouses and other public gathering sites, transmittal by facsimile or e-mail, and announcements on television, radio, and public address systems.

(Code 1981, §38-3-63, enacted by Ga. L. 2004, p. 420, § 3.)

38-3-64. Appeal rights of adversely affected parties; cost of appeal borne by state.

  1. Any person whose rights or interests are adversely affected by an order declaring the existence of a judicial emergency or any modification or extension of such an order shall be entitled to appeal.
  2. A notice of appeal shall be filed no later than 45 days after the expiration of the judicial emergency order, or any modification or extension of a judicial emergency order, from which an appeal is sought. A notice of appeal shall be filed with the clerk of a superior court in any jurisdiction affected by the order and shall be served upon:
    1. The authorized judicial official who issued the order;
    2. The parties to any criminal proceeding or civil litigation in which the appellant is involved which would be affected by the appeal;
    3. The district attorney of the county in which the notice of appeal is filed; and
    4. All other parties in any criminal proceeding or civil litigation which would be affected by the appeal; provided, however, that service in this regard shall be accomplished by publishing notice of the filing of the appeal in the newspaper which is the legal organ for the county in which the notice of the appeal is filed.
  3. The appeal shall be heard immediately by the Georgia Court of Appeals under the procedure of emergency motions. A party dissatisfied by the judgment of the Georgia Court of Appeals may appeal as a matter of right to the Georgia Supreme Court. Filing fees for these appeals shall be waived. All costs of court shall be borne by the state. Appeals shall be heard expeditiously.

(Code 1981, §38-3-64, enacted by Ga. L. 2004, p. 420, § 3.)

ARTICLE 4 RECOGNITION OF EMERGENCY MEDICAL SERVICES PERSONNEL LICENSURE INTERSTATE COMPACT

Effective date.

- This article became effective July 1, 2017.

Editor's notes.

- Section 14 of the compact provides that the "compact shall come into effect on the date on which the compact statute is enacted into law in the tenth member state." As of May 8, 2017, the tenth member state enacted the compact into law. The former article consisted of Code Sections38-3-70 through38-3-73, relating to emergency management, and was based on Ga. L. 1973, p. 459, §§ 1, 2; Ga. L. 1975, p. 1186, § 1; Ga. L. 1982, p. 3, § 38; Code 1981, § 38-3-73, enacted by Ga. L. 1996, p. 497, § 1, and was repealed on March 1, 2002, pursuant to former Code Section 38-3-73.

38-3-70. Short title.

This article shall be known and may be cited as the "Recognition of Emergency Medical Services Personnel Licensure Interstate Compact (REPLICA)."

(Code 1981, §38-3-70, enacted by Ga. L. 2017, p. 364, § 1/SB 109; Ga. L. 2018, p. 1112, § 38/SB 365.)

The 2018 amendment, effective May 8, 2018, part of an Act to revise, modernize, and correct the Code, substituted "cited as" for "referred to as" in this Code section.

38-3-71. Text of compact.

Section 1. Purpose.

In order to protect the public through verification of competency and ensure accountability for patient care related activities all states license emergency medical services (EMS) personnel, such as emergency medical technicians (EMTs), advanced EMTs, and paramedics. This Compact is intended to facilitate the day-to-day movement of EMS personnel across state boundaries in the performance of their EMS duties as assigned by an appropriate authority and authorize state EMS offices to afford immediate legal recognition to EMS personnel licensed in a member state. This Compact recognizes that states have a vested interest in protecting the public's health and safety through their licensing and regulation of EMS personnel and that such state regulation shared among the member states will best protect public health and safety. This Compact is designed to achieve the following purposes and objectives:

  1. Increase public access to EMS personnel;
  2. Enhance the states' ability to protect the public's health and safety, especially patient safety;
  3. Encourage the cooperation of member states in the areas of EMS personnel licensure and regulation;
  4. Support licensing of military members who are separating from an active duty tour and their spouses;
  5. Facilitate the exchange of information between member states regarding EMS personnel licensure, adverse action, and significant investigatory information;
  6. Promote compliance with the laws governing EMS personnel practice in each member state; and
  7. Invest all member states with the authority to hold EMS personnel accountable through the mutual recognition of member state licenses.

Section 2. Definitions.

In this compact:

"Advanced Emergency Medical Technician (AEMT)" means: an individual licensed with cognitive knowledge and a scope of practice that corresponds to that level in the National EMS Education Standards and National EMS Scope of Practice Model.

"Adverse Action" means: any administrative, civil, equitable, or criminal action permitted by a state's laws which may be imposed against licensed EMS personnel by a state EMS authority or state court, including, but not limited to, actions against an individual's license such as revocation, suspension, probation, consent agreement, monitoring, or other limitation or encumbrance on the individual's practice, letters of reprimand or admonition, fines, criminal convictions, and state court judgments enforcing adverse actions by the state EMS authority.

"Alternative program" means: a voluntary, non-disciplinary substance abuse recovery program approved by a state EMS authority.

"Certification" means: the successful verification of entry-level cognitive and psychomotor competency using a reliable, validated, and legally defensible examination.

"Commission" means: the national administrative body of which all states that have enacted the compact are members.

"Emergency Medical Technician (EMT)" means: an individual licensed with cognitive knowledge and a scope of practice that corresponds to that level in the National EMS Education Standards and National EMS Scope of Practice Model.

"Home State" means: a member state where an individual is licensed to practice emergency medical services.

"License" means: the authorization by a state for an individual to practice as an EMT, AEMT, paramedic, or a level in between EMT and paramedic.

"Medical Director" means: a physician licensed in a member state who is accountable for the care delivered by EMS personnel.

"Member State" means: a state that has enacted this compact.

"Paramedic" means: an individual licensed with cognitive knowledge and a scope of practice that corresponds to that level in the National EMS Education Standards and National EMS Scope of Practice Model.

"Privilege to Practice" means: an individual's authority to deliver emergency medical services in remote states as authorized under this compact.

"Remote State" means: a member state in which an individual is not licensed.

"Restricted" means: the outcome of an adverse action that limits a license or the privilege to practice.

"Rule" means: a written statement by the interstate Commission promulgated pursuant to Section 12 of this compact that is of general applicability; implements, interprets, or prescribes a policy or provision of the compact; or is an organizational, procedural, or practice requirement of the Commission and has the force and effect of statutory law in a member state and includes the amendment, repeal, or suspension of an existing rule.

"Scope of Practice" means: defined parameters of various duties or services that may be provided by an individual with specific credentials. Whether regulated by rule, statute, or court decision, it tends to represent the limits of services an individual may perform.

"Significant Investigatory Information" means:

  1. Investigative information that a state EMS authority, after a preliminary inquiry that includes notification and an opportunity to respond if required by state law, has reason to believe, if proved true, would result in the imposition of an adverse action on a license or privilege to practice; or
  2. Investigative information that indicates that the individual represents an immediate threat to public health and safety regardless of whether the individual has been notified and had an opportunity to respond.
    1. "State" means: means any state, commonwealth, district, or territory of the United States.
    2. "State EMS Authority" means: the board, office, or other agency with the legislative mandate to license EMS personnel.

Section 3. Home State Licensure.

Any member state in which an individual holds a current license shall be deemed a home state for purposes of this compact.

Any member state may require an individual to obtain and retain a license to be authorized to practice in the member state under circumstances not authorized by the privilege to practice under the terms of this compact.

A home state's license authorizes an individual to practice in a remote state under the privilege to practice only if the home state:

  1. Currently requires the use of the National Registry of Emergency Medical Technicians (NREMT) examination as a condition of issuing initial licenses at the EMT and paramedic levels;
  2. Has a mechanism in place for receiving and investigating complaints about individuals;
  3. Notifies the Commission, in compliance with the terms herein, of any adverse action or significant investigatory information regarding an individual;
  4. No later than five years after activation of the Compact, requires a criminal background check of all applicants for initial licensure, including the use of the results of fingerprint or other biometric data checks compliant with the requirements of the Federal Bureau of Investigation with the exception of federal employees who have suitability determination in accordance with US CFR § 731.202 and submit documentation of such as promulgated in the rules of the Commission; and
  5. Complies with the rules of the Commission.

Section 4. Compact Privilege to Practice.

Member states shall recognize the privilege to practice of an individual licensed in another member state that is in conformance with Section 3.

To exercise the privilege to practice under the terms and provisions of this compact, an individual must:

  1. Be at least 18 years of age;
  2. Possess a current unrestricted license in a member state as an EMT, AEMT, paramedic, or state recognized and licensed level with a scope of practice and authority between EMT and paramedic; and
  3. Practice under the supervision of a medical director.
    1. An individual providing patient care in a remote state under the privilege to practice shall function within the scope of practice authorized by the home state unless and until modified by an appropriate authority in the remote state as may be defined in the rules of the Commission.
    2. Except as provided in subsection (C) of this section, an individual practicing in a remote state will be subject to the remote state's authority and laws. A remote state may, in accordance with due process and that state's laws, restrict, suspend, or revoke an individual's privilege to practice in the remote state and may take any other necessary actions to protect the health and safety of its citizens. If a remote state takes action it shall promptly notify the home state and the Commission.
    3. If an individual's license in any home state is restricted or suspended, the individual shall not be eligible to practice in a remote state under the privilege to practice until the individual's home state license is restored.
    4. If an individual's privilege to practice in any remote state is restricted, suspended, or revoked the individual shall not be eligible to practice in any remote state until the individual's privilege to practice is restored.

Section 5. Conditions of Practice in a Remote State.

An individual may practice in a remote state under a privilege to practice only in the performance of the individual's EMS duties as assigned by an appropriate authority, as defined in the rules of the Commission, and under the following circumstances:

  1. The individual originates a patient transport in a home state and transports the patient to a remote state;
  2. The individual originates in the home state and enters a remote state to pick up a patient and provide care and transport of the patient to the home state;
  3. The individual enters a remote state to provide patient care and/or transport within that remote state;
  4. The individual enters a remote state to pick up a patient and provide care and transport to a third member state; or
  5. Other conditions as determined by rules promulgated by the Commission.

Section 6. Relationship to Emergency Management Assistance Compact.

Upon a member state's governor's declaration of a state of emergency or disaster that activates the Emergency Management Assistance Compact (EMAC), all relevant terms and provisions of EMAC shall apply and to the extent any terms or provisions of this Compact conflicts with EMAC, the terms of EMAC shall prevail with respect to any individual practicing in the remote state in response to such declaration.

Section 7. Veterans, Service Members Separating from Active Duty Military, and Their Spouses.

Member states shall consider a veteran, active military service member, and member of the National Guard and Reserves separating from an active duty tour, and a spouse thereof, who holds a current valid and unrestricted NREMT certification at or above the level of the state license being sought as satisfying the minimum training and examination requirements for such licensure.

Member states shall expedite the processing of licensure applications submitted by veterans, active military service members, and members of the National Guard and Reserves separating from an active duty tour, and their spouses.

All individuals functioning with a privilege to practice under this Section remain subject to the Adverse Actions provisions of Section 8.

Section 8. Adverse Actions.

A home state shall have exclusive power to impose adverse action against an individual's license issued by the home state.

If an individual's license in any home state is restricted or suspended, the individual shall not be eligible to practice in a remote state under the privilege to practice until the individual's home state license is restored.

  1. All home state adverse action orders shall include a statement that the individual's compact privileges are inactive. The order may allow the individual to practice in remote states with prior written authorization from both the home state and remote state's EMS authority.
  2. An individual currently subject to adverse action in the home state shall not practice in any remote state without prior written authorization from both the home state and remote state's EMS authority.
    1. A member state shall report adverse actions and any occurrences that the individual's compact privileges are restricted, suspended, or revoked to the Commission in accordance with the rules of the Commission.
    2. A remote state may take adverse action on an individual's privilege to practice within that state.
    3. Any member state may take adverse action against an individual's privilege to practice in that state based on the factual findings of another member state, so long as each state follows its own procedures for imposing such adverse action.
    4. A home state's EMS authority shall investigate and take appropriate action with respect to reported conduct in a remote state as it would if such conduct had occurred within the home state. In such cases, the home state's law shall control in determining the appropriate adverse action.
    5. Nothing in this Compact shall override a member state's decision that participation in an alternative program may be used in lieu of adverse action and that such participation shall remain non-public if required by the member state's laws. Member states must require individuals who enter any alternative programs to agree not to practice in any other member state during the term of the alternative program without prior authorization from such other member state.

Section 9. Additional Powers Invested in a Member State's EMS Authority.

A member state's EMS authority, in addition to any other powers granted under state law, is authorized under this compact to:

  1. Issue subpoenas for both hearings and investigations that require the attendance and testimony of witnesses and the production of evidence. Subpoenas issued by a member state's EMS authority for the attendance and testimony of witnesses, and/or the production of evidence from another member state, shall be enforced in the remote state by any court of competent jurisdiction, according to that court's practice and procedure in considering subpoenas issued in its own proceedings. The issuing state EMS authority shall pay any witness fees, travel expenses, mileage, and other fees required by the service statutes of the state where the witnesses and/or evidence are located; and
  2. Issue cease and desist orders to restrict, suspend, or revoke an individual's privilege to practice in the state.

Section 10. Establishment of the Interstate Commission for EMS Personnel Practice.

The Compact states hereby create and establish a joint public agency known as the Interstate Commission for EMS Personnel Practice.

  1. The Commission is a body politic and an instrumentality of the Compact states.
  2. Venue is proper and judicial proceedings by or against the Commission shall be brought solely and exclusively in a court of competent jurisdiction where the principal office of the Commission is located. The Commission may waive venue and jurisdictional defenses to the extent it adopts or consents to participate in alternative dispute resolution proceedings.
  3. Nothing in this Compact shall be construed to be a waiver of sovereign immunity.
    1. Membership, Voting, and Meetings

      Each member state shall have and be limited to one (1) delegate. The responsible official of the state EMS authority or his or her designee shall be the delegate to this Compact for each member state. Any delegate may be removed or suspended from office as provided by the law of the state from which the delegate is appointed. Any vacancy occurring in the Commission shall be filled in accordance with the laws of the member state in which the vacancy exists. In the event that more than one board, office, or other agency with the legislative mandate to license EMS personnel at and above the level of EMT exists, the Governor of the state will determine which entity will be responsible for assigning the delegate.

      The Commission shall meet at least once during each calendar year. Additional meetings shall be held as set forth in the bylaws.

      Each delegate shall be entitled to one (1) vote with regard to the promulgation of rules and creation of bylaws and shall otherwise have an opportunity to participate in the business and affairs of the Commission. A delegate shall vote in person or by such other means as provided in the bylaws. The bylaws may provide for delegates' participation in meetings by telephone or other means of communication.

  4. All meetings shall be open to the public, and public notice of meetings shall be given in the same manner as required under the rulemaking provisions in Section 12.
  5. The Commission may convene in a closed, non-public meeting if the Commission must discuss:
  1. Non-compliance of a member state with its obligations under the Compact;
  2. The employment, compensation, discipline or other personnel matters, practices or procedures related to specific employees, or other matters related to the Commission's internal personnel practices and procedures;
  3. Current, threatened, or reasonably anticipated litigation;
  4. Negotiation of contracts for the purchase or sale of goods, services, or real estate;
  5. Accusing any person of a crime or formally censuring any person;
  6. Disclosure of trade secrets or commercial or financial information that is privileged or confidential;
  7. Disclosure of information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;
  8. Disclosure of investigatory records compiled for law enforcement purposes;
  9. Disclosure of information related to any investigatory reports prepared by or on behalf of or for use of the Commission or other committee charged with responsibility of investigation or determination of compliance issues pursuant to the compact; or
  10. Matters specifically exempted from disclosure by federal or member state statute.
    1. Establishing the fiscal year of the Commission;
    2. Providing reasonable standards and procedures:
    3. Providing reasonable procedures for calling and conducting meetings of the Commission, ensuring reasonable advance notice of all meetings, and providing an opportunity for attendance of such meetings by interested parties, with enumerated exceptions designed to protect the public's interest, the privacy of individuals, and proprietary information, including trade secrets. The Commission may meet in closed session only after a majority of the membership votes to close a meeting in whole or in part. As soon as practicable, the Commission must make public a copy of the vote to close the meeting revealing the vote of each member with no proxy votes allowed;
    4. Establishing the titles, duties and authority, and reasonable procedures for the election of the officers of the Commission;
    5. Providing reasonable standards and procedures for the establishment of the personnel policies and programs of the Commission. Notwithstanding any civil service or other similar laws of any member state, the bylaws shall exclusively govern the personnel policies and programs of the Commission;
    6. Promulgating a code of ethics to address permissible and prohibited activities of Commission members and employees;
    7. Providing a mechanism for winding up the operations of the Commission and the equitable disposition of any surplus funds that may exist after the termination of the Compact after the payment and/or reserving of all of its debts and obligations.
    8. The Commission shall publish its bylaws and file a copy thereof, and a copy of any amendment thereto, with the appropriate agency or officer in each of the member states, if any.
    9. The Commission shall maintain its financial records in accordance with the bylaws.
    10. The Commission shall meet and take such actions as are consistent with the provisions of this Compact and the bylaws.
      1. The Commission shall have the following powers:

        The authority to promulgate uniform rules to facilitate and coordinate implementation and administration of this Compact. The rules shall have the force and effect of law and shall be binding in all member states;

        To borrow money;

        To establish a budget and make expenditures;

        To sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose of any property real, personal, or mixed;

        To lease, purchase, accept appropriate gifts or donations of, or otherwise to own, hold, improve or use, any property, real, personal or mixed; provided that at all times the Commission shall strive to avoid any appearance of impropriety;

        To accept any and all appropriate donations and grants of money, equipment, supplies, materials and services, and to receive, utilize and dispose of the same; provided that at all times the Commission shall strive to avoid any appearance of impropriety and/or conflict of interest;

        To hire employees, elect or appoint officers, fix compensation, define duties, grant such individuals appropriate authority to carry out the purposes of the compact, and to establish the Commission's personnel policies and programs relating to conflicts of interest, qualifications of personnel, and other related personnel matters;

        To borrow, accept, or contract for services of personnel, including, but not limited to, employees of a member state;

        To purchase and maintain insurance and bonds;

        To bring and prosecute legal proceedings or actions in the name of the Commission, provided that the standing of any state EMS authority or other regulatory body responsible for EMS personnel licensure to sue or be sued under applicable law shall not be affected;

    11. To appoint committees, including advisory committees comprised of members, state regulators, state legislators or their representatives, and consumer representatives, and such other interested persons as may be designated in this compact and the bylaws;
    12. To provide and receive information from, and to cooperate with, law enforcement agencies;
    13. To adopt and use an official seal; and
    14. To perform such other functions as may be necessary or appropriate to achieve the purposes of this Compact consistent with the state regulation of EMS personnel licensure and practice.
      1. Financing of the Commission

        The Commission shall pay, or provide for the payment of, the reasonable expenses of its establishment, organization, and ongoing activities.

        The Commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the Commission shall be subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the Commission shall be audited yearly by a certified or licensed public accountant, and the report of the audit shall be included in and become part of the annual report of the Commission.

        The Commission shall not incur obligations of any kind prior to securing the funds adequate to meet the same; nor shall the Commission pledge the credit of any of the member states, except by and with the authority of the member state.

        The Commission may levy on and collect an annual assessment from each member state or impose fees on other parties to cover the cost of the operations and activities of the Commission and its staff, which must be in a total amount sufficient to cover its annual budget as approved each year for which revenue is not provided by other sources. The aggregate annual assessment amount shall be allocated based upon a formula to be determined by the Commission, which shall promulgate a rule binding upon all member states.

        The Commission may accept any and all appropriate revenue sources, donations, and grants of money, equipment, supplies, materials, and services.

      2. Qualified Immunity, Defense, and Indemnification

        The members, officers, executive director, employees and representatives of the Commission shall be immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused by or arising out of any actual or alleged act, error or omission that occurred, or that the person against whom the claim is made had a reasonable basis for believing occurred within the scope of Commission employment, duties or responsibilities; provided that nothing in this paragraph shall be construed to protect any such person from suit and/or liability for any damage, loss, injury, or liability caused by the intentional or willful or wanton misconduct of that person.

        The Commission shall indemnify and hold harmless any member, officer, executive director, employee, or representative of the Commission for the amount of any settlement or judgment obtained against that person arising out of any actual or alleged act, error, or omission that occurred within the scope of Commission employment, duties, or responsibilities, or that such person had a reasonable basis for believing occurred within the scope of Commission employment, duties, or responsibilities, provided that the actual or alleged act, error, or omission did not result from the intentional or willful or wanton misconduct of that person.

        The Commission shall defend any member, officer, executive director, employee or representative of the Commission in any civil action seeking to impose liability arising out of any actual or alleged act, error, or omission that occurred within the scope of Commission employment, duties, or responsibilities, or that the person against whom the claim is made had a reasonable basis for believing occurred within the scope of Commission employment, duties, or responsibilities; provided that nothing herein shall be construed to prohibit that person from retaining his or her own counsel; and provided further, that the actual or alleged act, error, or omission did not result from that person's intentional or willful or wanton misconduct.

If a meeting, or portion of a meeting, is closed pursuant to this provision, the Commission's legal counsel or designee shall certify that the meeting may be closed and shall reference each relevant exempting provision. The Commission shall keep minutes that fully and clearly describe all matters discussed in a meeting and shall provide a full and accurate summary of actions taken, and the reasons therefore, including a description of the views expressed. All documents considered in connection with an action shall be identified in such minutes. All minutes and documents of a closed meeting shall remain under seal, subject to release by a majority vote of the Commission or order of a court of competent jurisdiction.

The Commission shall, by a majority vote of the delegates, prescribe bylaws and/or rules to govern its conduct as may be necessary or appropriate to carry out the purposes and exercise the powers of the compact, including, but not limited to:

For the establishment and meetings of other committees; and

Governing any general or specific delegation of any authority or function of the Commission;

Section 11. Coordinated Database.

The Commission shall provide for the development and maintenance of a coordinated database and reporting system containing licensure, adverse action, and significant investigatory information on all licensed individuals in member states.

Notwithstanding any other provision of state law to the contrary, a member state shall submit a uniform data set to the coordinated database on all individuals to whom this compact is applicable as required by the rules of the Commission, including:

  1. Identifying information;
  2. Licensure data;
  3. Significant investigatory information;
  4. Adverse actions against an individual's license;
  5. An indicator that an individual's privilege to practice is restricted, suspended or revoked;
  6. Non-confidential information related to alternative program participation;
  7. Any denial of application for licensure, and the reason(s) for such denial; and
  8. Other information that may facilitate the administration of this Compact, as determined by the rules of the Commission.
    1. The coordinated database administrator shall promptly notify all member states of any adverse action taken against, or significant investigative information on, any individual in a member state.
    2. Member states contributing information to the coordinated database may designate information that may not be shared with the public without the express permission of the contributing state.
    3. Any information submitted to the coordinated database that is subsequently required to be expunged by the laws of the member state contributing the information shall be removed from the coordinated database.

Section 12. Rulemaking.

The Commission shall exercise its rulemaking powers pursuant to the criteria set forth in this Section and the rules adopted thereunder. Rules and amendments shall become binding as of the date specified in each rule or amendment.

If a majority of the legislatures of the member states rejects a rule, by enactment of a statute or resolution in the same manner used to adopt the Compact, then such rule shall have no further force and effect in any member state.

Rules or amendments to the rules shall be adopted at a regular or special meeting of the Commission.

Prior to promulgation and adoption of a final rule or rules by the Commission, and at least sixty (60) days in advance of the meeting at which the rule will be considered and voted upon, the Commission shall file a Notice of Proposed Rulemaking:

  1. On the website of the Commission; and
  2. On the website of each member state EMS authority or the publication in which each state would otherwise publish proposed rules.
    1. The Notice of Proposed Rulemaking shall include:

      The proposed time, date, and location of the meeting in which the rule will be considered and voted upon;

      The text of the proposed rule or amendment and the reason for the proposed rule;

  3. A request for comments on the proposed rule from any interested person; and
  4. The manner in which interested persons may submit notice to the Commission of their intention to attend the public hearing and any written comments.
    1. Prior to adoption of a proposed rule, the Commission shall allow persons to submit written data, facts, opinions, and arguments, which shall be made available to the public.
    2. The Commission shall grant an opportunity for a public hearing before it adopts a rule or amendment if a hearing is requested by:

      At least twenty-five (25) persons;

      An association having at least twenty-five (25) members.

      A governmental subdivision or agency; or

    3. If a hearing is held on the proposed rule or amendment, the Commission shall publish the place, time, and date of the scheduled public hearing.

      All persons wishing to be heard at the hearing shall notify the executive director of the Commission or other designated member in writing of their desire to appear and testify at the hearing not less than five (5) business days before the scheduled date of the hearing.

      Nothing in this section shall be construed as requiring a separate hearing on each rule. Rules may be grouped for the convenience of the Commission at hearings required by this section.

      No transcript of the hearing is required, unless a written request for a transcript is made, in which case the person requesting the transcript shall bear the cost of producing the transcript. A recording may be made in lieu of a transcript under the same terms and conditions as a transcript. This subsection shall not preclude the Commission from making a transcript or recording of the hearing if it so chooses.

      Hearings shall be conducted in a manner providing each person who wishes to comment a fair and reasonable opportunity to comment orally or in writing.

    4. Following the scheduled hearing date, or by the close of business on the scheduled hearing date if the hearing was not held, the Commission shall consider all written and oral comments received.
    5. The Commission shall, by majority vote of all members, take final action on the proposed rule and shall determine the effective date of the rule, if any, based on the rulemaking record and the full text of the rule.
    6. If no written notice of intent to attend the public hearing by interested parties is received, the Commission may proceed with promulgation of the proposed rule without a public hearing.
    7. Upon determination that an emergency exists, the Commission may consider and adopt an emergency rule without prior notice, opportunity for comment, or hearing, provided that the usual rulemaking procedures provided in the Compact and in this section shall be retroactively applied to the rule as soon as reasonably possible, in no event later than ninety (90) days after the effective date of the rule. For the purposes of this provision, an emergency rule is one that must be adopted immediately in order to:

      Meet an imminent threat to public health, safety, or welfare;

      Protect public health and safety.

      Meet a deadline for the promulgation of an administrative rule that is established by federal law or rule; or

      Prevent a loss of Commission or member state funds;

    8. The Commission or an authorized committee of the Commission may direct revisions to a previously adopted rule or amendment for purposes of correcting typographical errors, errors in format, errors in consistency, or grammatical errors. Public notice of any revisions shall be posted on the website of the Commission. The revision shall be subject to challenge by any person for a period of thirty (30) days after posting. The revision may be challenged only on grounds that the revision results in a material change to a rule. A challenge shall be made in writing, and delivered to the chair of the Commission prior to the end of the notice period. If no challenge is made, the revision will take effect without further action. If the revision is challenged, the revision may not take effect without the approval of the Commission.

Section 13. Oversight, Dispute Resolution, and Enforcement.

Oversight

  1. The executive, legislative, and judicial branches of state government in each member state shall enforce this compact and take all actions necessary and appropriate to effectuate the compact's purposes and intent. The provisions of this compact and the rules promulgated hereunder shall have standing as statutory law.
  2. All courts shall take judicial notice of the compact and the rules in any judicial or administrative proceeding in a member state pertaining to the subject matter of this compact which may affect the powers, responsibilities or actions of the Commission.
  3. The Commission shall be entitled to receive service of process in any such proceeding, and shall have standing to intervene in such a proceeding for all purposes. Failure to provide service of process to the Commission shall render a judgment or order void as to the Commission, this Compact, or promulgated rules.
    1. Default, Technical Assistance, and Termination

      If the Commission determines that a member state has defaulted in the performance of its obligations or responsibilities under this compact or the promulgated rules, the Commission shall:

  1. Provide written notice to the defaulting state and other member states of the nature of the default, the proposed means of curing the default and/or any other action to be taken by the Commission; and
  2. Provide remedial training and specific technical assistance regarding the default.
    1. Upon request by a member state, the Commission shall attempt to resolve disputes related to the compact that arise among member states and between member and non-member states.
    2. The Commission shall promulgate a rule providing for both mediation and binding dispute resolution for disputes as appropriate.
      1. Enforcement

        The Commission, in the reasonable exercise of its discretion, shall enforce the provisions and rules of this compact.

        By majority vote, the Commission may initiate legal action in the United States District Court for the District of Columbia or the federal district where the Commission has its principal offices against a member state in default to enforce compliance with the provisions of the compact and its promulgated rules and bylaws. The relief sought may include both injunctive relief and damages. In the event judicial enforcement is necessary, the prevailing member shall be awarded all costs of such litigation, including reasonable attorney's fees.

    3. The remedies herein shall not be the exclusive remedies of the Commission. The Commission may pursue any other remedies available under federal or state law.

If a state in default fails to cure the default, the defaulting state may be terminated from the Compact upon an affirmative vote of a majority of the member states, and all rights, privileges and benefits conferred by this compact may be terminated on the effective date of termination. A cure of the default does not relieve the offending state of obligations or liabilities incurred during the period of default.

Termination of membership in the compact shall be imposed only after all other means of securing compliance have been exhausted. Notice of intent to suspend or terminate shall be given by the Commission to the governor, the majority and minority leaders of the defaulting state's legislature, and each of the member states.

A state that has been terminated is responsible for all assessments, obligations, and liabilities incurred through the effective date of termination, including obligations that extend beyond the effective date of termination.

The Commission shall not bear any costs related to a state that is found to be in default or that has been terminated from the compact, unless agreed upon in writing between the Commission and the defaulting state.

The defaulting state may appeal the action of the Commission by petitioning the U.S. District Court for the District of Columbia or the federal district where the Commission has its principal offices. The prevailing member shall be awarded all costs of such litigation, including reasonable attorney's fees.

Dispute Resolution

Section 14. Date of Implementation of the Interstate Commission for EMS Personnel Practice and Associated Rules, Withdrawal, and Amendment.

The compact shall come into effect on the date on which the compact statute is enacted into law in the tenth member state. The provisions, which become effective at that time, shall be limited to the powers granted to the Commission relating to assembly and the promulgation of rules. Thereafter, the Commission shall meet and exercise rulemaking powers necessary to the implementation and administration of the compact.

Any state that joins the compact subsequent to the Commission's initial adoption of the rules shall be subject to the rules as they exist on the date on which the compact becomes law in that state. Any rule that has been previously adopted by the Commission shall have the full force and effect of law on the day the compact becomes law in that state.

Any member state may withdraw from this compact by enacting a statute repealing the same.

  1. A member state's withdrawal shall not take effect until six (6) months after enactment of the repealing statute.
  2. Withdrawal shall not affect the continuing requirement of the withdrawing state's EMS authority to comply with the investigative and adverse action reporting requirements of this act prior to the effective date of withdrawal.
    1. Nothing contained in this compact shall be construed to invalidate or prevent any EMS personnel licensure agreement or other cooperative arrangement between a member state and a non-member state that does not conflict with the provisions of this compact.
    2. This Compact may be amended by the member states. No amendment to this Compact shall become effective and binding upon any member state until it is enacted into the laws of all member states.

Section 15. Construction and Severability

This Compact shall be liberally construed so as to effectuate the purposes thereof. If this compact shall be held contrary to the constitution of any state member thereto, the compact shall remain in full force and effect as to the remaining member states. Nothing in this compact supersedes state law or rules related to licensure of EMS agencies.

(Code 1981, §38-3-71, enacted by Ga. L. 2017, p. 364, § 1/SB 109; Ga. L. 2018, p. 1112, § 38/SB 365.)

The 2018 amendment, effective May 8, 2018, part of an Act to revise, modernize, and correct the Code, revised punctuation in the middle of paragraph (F)(3) of Section 10.

ARTICLE 5 EMERGENCY MANAGEMENT ASSISTANCE COMPACT

Editor's notes.

- The Congress of the United States consented to the substance of the emergency management assistance compact provided by this article in Pub. L. No. 104-321, 110 Stat. 3877, approved October 19, 1996.

38-3-80. Short title.

This article shall be known and may be cited as the "Emergency Management Assistance Compact."

(Code 1981, §38-3-80, enacted by Ga. L. 1996, p. 497, § 2; Ga. L. 2003, p. 140, § 38.)

38-3-81. Enactment; text.

The Emergency Management Assistance Compact is enacted into law and entered into by the State of Georgia with all other states which adopt the compact in a form substantially as follows:

"EMERGENCY MANAGEMENT ASSISTANCE COMPACT The contracting states solemnly agree that:
ARTICLE I - PURPOSE AND AUTHORITIES This compact is made and entered into by and between the participating member states which enact this compact, hereinafter called party states. For the purposes of this agreement, the term "states" is taken to mean the several states, the Commonwealth of Puerto Rico, the District of Columbia, and all U.S. territorial possessions.

The purpose of this compact is to provide for mutual assistance between the states entering into this compact in managing any emergency or disaster that is duly declared by the governor of the affected state(s), whether arising from natural disaster, technological hazard, man-made disaster, civil emergency aspects of resources shortages, community disorders, insurgency, or enemy attack.

This compact shall also provide for mutual cooperation in emergency-related exercises, testing, or other training activities using equipment and personnel simulating performance of any aspect of the giving and receiving of aid by party states or subdivisions of party states during emergencies, such actions occurring outside actual declared emergency periods. Mutual assistance in this compact may include the use of the states' National Guard forces, either in accordance with the National Guard Mutual Assistance Compact or by mutual agreement between states.

ARTICLE II - GENERAL IMPLEMENTATION Each party state entering into this compact recognizes many emergencies transcend political jurisdictional boundaries and that intergovernmental coordination is essential in managing these and other emergencies under this compact. Each state further recognizes that there will be emergencies which require immediate access and present procedures to apply outside resources to make a prompt and effective response to such an emergency. This is because few, if any, individual states have all the resources they may need in all types of emergencies or the capability of delivering resources to areas where emergencies exist.

The prompt, full, and effective utilization of resources of the participating states, including any resources on hand or available from the Federal Government or any other source, that are essential to the safety, care, and welfare of the people in the event of any emergency or disaster declared by a party state, shall be the underlying principle on which all articles of this compact shall be understood.

On behalf of the governor of each state participating in the compact, the legally designated state official who is assigned responsibility for emergency management will be responsible for formulation of the appropriate interstate mutual aid plans and procedures necessary to implement this compact.

ARTICLE III - PARTY STATE RESPONSIBILITIES a)It shall be the responsibility of each party state to formulate procedural plans and programs for interstate cooperation in the performance of the responsibilities listed in this article. In formulating such plans, and in carrying them out, the party states, insofar as practical, shall:
  1. Review individual state hazards analyses and, to the extent reasonably possible, determine all those potential emergencies the party states might jointly suffer, whether due to natural disaster, technological hazard, man-made disaster, emergency aspects of resource shortages, civil disorders, insurgency, or enemy attack.
  2. Review party states' individual emergency plans and develop a plan which will determine the mechanism for the interstate management and provision of assistance concerning any potential emergency.
  3. Develop interstate procedures to fill any identified gaps and to resolve any identified inconsistencies or overlaps in existing or developed plans.
  4. Assist in warning communities adjacent to or crossing the state boundaries.
  5. Protect and assure uninterrupted delivery of services, medicines, water, food, energy and fuel, search and rescue, and critical lifeline equipment, services, and resources, both human and material.
  6. Inventory and set procedures for the interstate loan and delivery of human and material resources, together with procedures for reimbursement or forgiveness.
  7. Provide, to the extent authorized by law, for temporary suspension of any statutes or ordinances that restrict the implementation of the above responsibilities.

    Each party state shall afford to the emergency forces of any party state, while operating within its state limits under the terms and conditions of this compact, the same powers (except that of arrest unless specifically authorized by the receiving state), duties, rights, and privileges as are afforded forces of the state in which they are performing emergency services. Emergency forces will continue under the command and control of their regular leaders, but the organizational units will come under the operational control of the emergency services authorities of the state receiving assistance. These conditions may be activated, as needed, only subsequent to a declaration of a state of emergency or disaster by the governor of the party state that is to receive assistance or commencement of exercises or training for mutual aid and shall continue so long as the exercises or training for mutual aid are in progress, the state of emergency or disaster remains in effect or loaned resources remain in the receiving state(s), whichever is longer.

The authorized representative of a party state may request assistance of another party state by contacting the authorized representative of that state. The provisions of this agreement shall only apply to requests for assistance made by and to authorized representatives. Requests may be verbal or in writing. If verbal, the request shall be confirmed in writing within 30 days of the verbal request. Requests shall provide the following information:

A description of the emergency service function for which assistance is needed, such as but not limited to fire services, law enforcement, emergency medical, transportation, communications, public works and engineering, building inspection, planning and information assistance, mass care, resource support, health and medical services, and search and rescue.

The amount and type of personnel, equipment, materials and supplies needed, and a reasonable estimate of the length of time they will be needed.

The specific place and time for staging of the assisting party's response and a point of contact at that location.

There shall be frequent consultation between state officials who have assigned emergency management responsibilities and other appropriate representatives of the party states with affected jurisdictions and the United States Government, with free exchange of information, plans, and resource records relating to emergency capabilities.

ARTICLE IV - LIMITATIONS Any party state requested to render mutual aid or conduct exercises and training for mutual aid shall take such action as is necessary to provide and make available the resources covered by this compact in accordance with the terms hereof; provided that it is understood that the state rendering aid may withhold resources to the extent necessary to provide reasonable protection for such state.
ARTICLE V - LICENSES AND PERMITS Whenever any person holds a license, certificate, or other permit issued by any state party to the compact evidencing the meeting of qualifications for professional, mechanical, or other skills, and when such assistance is requested by the receiving party state, such person shall be deemed licensed, certified, or permitted by the state requesting assistance to render aid involving such skill to meet a declared emergency or disaster, subject to such limitations and conditions as the governor of the requesting state may prescribe by executive order or otherwise.
ARTICLE VI - LIABILITY Officers or employees of a party state rendering aid in another state pursuant to this compact shall be considered agents of the requesting state for tort liability and immunity purposes; and no party state or its officers or employees rendering aid in another state pursuant to this compact shall be liable on account of any act or omission in good faith on the part of such forces while so engaged or on account of the maintenance or use of any equipment or supplies in connection therewith. Good faith in this article shall not include willful misconduct, gross negligence, or recklessness.
ARTICLE VII - SUPPLEMENTARY AGREEMENTS Inasmuch as it is probable that the pattern and detail of the machinery for mutual aid among two or more states may differ from that among the states that are party hereto, this instrument contains elements of a broad base common to all states, and nothing herein contained shall preclude any state from entering into supplementary agreements with another state or affect any other agreements already in force between states. Supplementary agreements may comprehend, but shall not be limited to, provisions for evacuation and reception of injured and other persons and the exchange of medical, fire, police, public utility, reconnaissance, welfare, transportation and communications personnel, and equipment and supplies.
ARTICLE VIII - COMPENSATION Each party state shall provide for the payment of compensation and death benefits to injured members of the emergency forces of that state and representatives of deceased members of such forces in case such members sustain injuries or are killed while rendering aid pursuant to this compact, in the same manner and on the same terms as if the injury or death were sustained within their own state.
ARTICLE IX - REIMBURSEMENT Any party state rendering aid in another state pursuant to this compact shall be reimbursed by the party state receiving such aid for any loss or damage to or expense incurred in the operation of any equipment and the provision of any service in answering a request for aid and for the costs incurred in connection with such request; provided, that any aiding party state may assume in whole or in part such loss, damage, expense, or other cost, or may loan such equipment or donate such services to the receiving party state without charge or cost; and provided further, that any two or more party states may enter into supplementary agreements establishing a different allocation of costs among those states. Article VIII expenses shall not be reimbursable under this provision.
ARTICLE X - EVACUATION Plans for the orderly evacuation and interstate reception of portions of the civilian population as the result of any emergency or disaster of sufficient proportions to so warrant, shall be worked out and maintained between the party states and the emergency management/services directors of the various jurisdictions where any type of incident requiring evacuations might occur. Such plans shall be put into effect by request of the state from which evacuees come and shall include the manner of transporting such evacuees, the number of evacuees to be received in different areas, the manner in which food, clothing, housing, and medical care will be provided, the registration of the evacuees, the providing of facilities for the notification of relatives or friends, and the forwarding of such evacuees to other areas or the bringing in of additional materials, supplies, and all other relevant factors. Such plans shall provide that the party state receiving evacuees and the party state from which the evacuees come shall mutually agree as to reimbursement of out-of-pocket expenses incurred in receiving and caring for such evacuees, for expenditures for transportation, food, clothing, medicines, and medical care, and like items. Such expenditures shall be reimbursed as agreed by the party state from which the evacuees come. After the termination of the emergency or disaster, the party state from which the evacuees come shall assume the responsibility for the ultimate support of repatriation of such evacuees.
ARTICLE XI - IMPLEMENTATION a)This compact shall become operative immediately upon its enactment into law by any two states and when Congress has given consent thereto; thereafter, this compact shall become effective as to any other state upon its enactment by such state.

Any party state may withdraw from this compact by enacting a statute repealing the same, but no such withdrawal shall take effect until 30 days after the governor of the withdrawing state has given notice in writing of such withdrawal to the governors of all other party states. Such action shall not relieve the withdrawing state from obligations assumed hereunder prior to the effective date of withdrawal.

Duly authenticated copies of this compact and of such supplementary agreements as may be entered into shall, at the time of their approval, be deposited with each of the party states and with the Federal Emergency Management Agency and other appropriate agencies of the United States Government.

ARTICLE XII - VALIDITY This compact shall be construed to effectuate the purposes stated in Article I hereof. If any provision of this compact is declared unconstitutional, or the applicability thereof to any person or circumstances is held invalid, the constitutionality of the remainder of this compact and the applicability thereof to other persons and circumstances shall not be affected thereby.
ARTICLE XIII - ADDITIONAL PROVISIONS Nothing in this compact shall authorize or permit the use of military force by the National Guard of a state at any place outside that state in any emergency for which the President is authorized by law to call into federal service the militia or for any purpose for which the use of the Army or the Air Force would in the absence of express statutory authorization be prohibited under Section 1385 of Title 18, United States Code."

(Code 1981, §38-3-81, enacted by Ga. L. 1996, p. 497, § 2; Ga. L. 2003, p. 140, § 38.)

ARTICLE 6 DISASTER VOLUNTEER LEAVE ACT

Cross references.

- Use of parolees during natural disasters, § 42-9-44.3.

38-3-90. Short title.

This article shall be known and may be cited as the "Disaster Volunteer Leave Act."

(Code 1981, §38-3-90, enacted by Ga. L. 1998, p. 883, § 1.)

38-3-91. Definitions.

As used in this article, the term:

  1. "Disaster" means a presidentially declared disaster or a state of emergency disaster declared by the Governor of a state.
  2. "State agency" means any department, officer, commission, board, or institution of this state, including the several courts of this state and the General Assembly and its committees or commissions.

(Code 1981, §38-3-91, enacted by Ga. L. 1998, p. 883, § 1.)

38-3-92. Legislative finding.

It is the finding of the General Assembly that natural disasters and disasters created by human agency often arise suddenly and that cooperation among government agencies and volunteer service agencies is vital in coping with such emergencies. The General Assembly further finds that dedicated service by trained and experienced volunteers can help prevent loss and destruction of life and property and that it is in the interest of the state and the citizens of the state to allow certain state employees who are trained and experienced in disaster relief to provide such service for brief periods without loss of pay and benefits.

(Code 1981, §38-3-92, enacted by Ga. L. 1998, p. 883, § 1.)

38-3-93. Authorization for certain employees of state agencies to be granted leave from work with pay in order to participate in specialized disaster relief services.

An employee of a state agency who is a certified disaster service volunteer of the American Red Cross may be granted leave from his or her work with pay for not to exceed 15 workdays in any 12 month period to participate in specialized disaster relief services for the American Red Cross, upon the request of the American Red Cross for the services of that employee and upon the approval of that employee's agency and coordinated through the director of emergency management, without loss of seniority, pay, vacation time, compensatory time, sick time, or earned overtime accumulation. The state agency shall compensate an employee granted leave under this Code section at his or her regular rate of pay for those regular hours during which the employee is absent from work. Leave under this article shall be granted only for the services related to a disaster occurring within this state or in a contiguous state which has a reciprocal statutory provision.

(Code 1981, §38-3-93, enacted by Ga. L. 1998, p. 883, § 1.)

ARTICLE 7 STATE-WIDE ALERT SYSTEM FOR MISSING DISABLED ADULTS

38-3-110 through 38-3-119. Redesignated.

Editor's notes.

- Ga. L. 2008, p. 233, § 1/SB 202, effective July 1, 2008, redesignated Code Sections 38-3-110 through 38-3-119 as Code Sections 35-3-170 through 35-3-180, respectively.

ARTICLE 8 ALERT SYSTEM FOR UNAPPREHENDED MURDER OR RAPE SUSPECTS

38-3-120. Redesignated.

Editor's notes.

- Ga. L. 2007, p. 47, § 38(7)/SB 103, effective May 11, 2007, redesignated former Code Section 38-3-120 as present Code Section 38-3-130.

Ga. L. 2008, p. 233, § 1/SB 202, purported to amend and redesignate Code Section 38-3-120 as Code Section 35-3-190 but actually amended and redesignated Code Section 38-3-130 as Code Section 35-3-190.

38-3-130. Redesignated.

Editor's notes.

- Ga. L. 2008, p. 233, § 1/SB 202, effective July 1, 2008, redesignated former Code Section 38-3-130 as present Code Section 35-3-190.

ARTICLE 9 GEORGIA EMERGENCY MANAGEMENT AND HOMELAND SECURITY AGENCY NOMENCLATURE ACT

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2008, Article 9, as enacted by Ga. L. 2008, p. 564, § 1/SB 33, was redesignated as Article 10.

38-3-140. Short title.

This article shall be known and may be cited as the "Georgia Emergency Management and Homeland Security Agency Nomenclature Act of 2008."

(Code 1981, §38-3-140, enacted by Ga. L. 2008, p. 543, § 1/HB 1201; Ga. L. 2016, p. 91, § 12/SB 416.)

The 2016 amendment, effective July 1, 2016, inserted "and Homeland Security" in the middle of this Code section.

38-3-141. Definitions.

As used in this article, the term:

  1. "Badge" means any official badge, identification card, or security pass used by members of the Georgia Emergency Management and Homeland Security Agency, either in the past or currently.
  2. "Director" means the director of the Georgia Emergency Management and Homeland Security Agency.
  3. "Emblem" means any official patch or other emblem worn currently or formerly or used by the Georgia Emergency Management and Homeland Security Agency to identify the agency, a division of the agency, or employees of the agency.
  4. "Person" means any person, corporation, organization, or political subdivision of the State of Georgia.
  5. "Seal" means any official symbol, mark, or abbreviation which represents and is used, currently or in the past, by the Georgia Emergency Management and Homeland Security Agency or any other division or operation under the command of the Georgia Emergency Management and Homeland Security Agency to identify the agency, a division of the agency, or employees of the agency.
  6. "Willful violator" means any person who knowingly violates the provisions of this article. Any person who violates this article after being advised in writing by the director that such person's activity is in violation of this article shall be considered a willful violator and shall be considered in willful violation of this article. Any person whose agent or representative is a willful violator and who has knowledge of the violation by the agent or representative shall also be considered a willful violator and in willful violation of this article unless, upon learning of the violation, he or she immediately terminates the agency or other relationship with such violator.

(Code 1981, §38-3-141, enacted by Ga. L. 2008, p. 543, § 1/HB 1201; Ga. L. 2016, p. 91, § 13/SB 416.)

The 2016 amendment, effective July 1, 2016, inserted "and Homeland Security" throughout this Code section.

38-3-142. Use of agency name without written permission prohibited in certain circumstances.

Whoever, except with the written permission of the director, knowingly uses the words "Georgia Emergency Management Agency," "Georgia Homeland Security Agency," "Emergency Management Agency," "Homeland Security Agency," "GEMA," "GEMHSA," or "GEMA/HS" in referring to Georgia's Emergency Management and Homeland Security Agency in connection with any advertisement, circular, book, pamphlet, or other publication, play, motion picture, broadcast, telecast, or other production in a manner reasonably calculated to convey the impression that such advertisement, circular, book, pamphlet, or other publication, play, motion picture, broadcast, telecast, or other production is approved, endorsed, or authorized by or associated with the Georgia Emergency Management and Homeland Security Agency shall be in violation of this article.

(Code 1981, §38-3-142, enacted by Ga. L. 2008, p. 543, § 1/HB 1201; Ga. L. 2016, p. 91, § 14/SB 416.)

The 2016 amendment, effective July 1, 2016, substituted "'Georgia Homeland Security Agency,' 'Emergency Management Agency,' 'Homeland Security Agency,' 'GEMA,' 'GEMHSA,' or 'GEMA/HS' in referring to Georgia's Emergency Management and Homeland Security" for "'Emergency Management Agency,' or 'GEMA' in referring to Georgia's Emergency Management" near the beginning and inserted "and Homeland Security" near the end of this Code section.

38-3-143. Use or display of agency symbols without written permission prohibited.

Any person who uses or displays any symbol, including any emblem, seal, or badge, current or historical, used by the Georgia Emergency Management and Homeland Security Agency without written permission from the director shall be in violation of this article.

(Code 1981, §38-3-143, enacted by Ga. L. 2008, p. 543, § 1/HB 1201; Ga. L. 2016, p. 91, § 15/SB 416.)

The 2016 amendment, effective July 1, 2016, inserted "and Homeland Security" in the middle of this Code section.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2008, Code Section 35-3-143, as enacted by Ga. L. 2008, p. 543, § 1, was redesignated as Code Section 38-3-143.

OPINIONS OF THE ATTORNEY GENERAL

Fingerprinting of offenders not required.

- Violation of O.C.G.A. § 38-3-143 is not an offense designated as one that requires fingerprinting. 2009 Op. Att'y Gen. No. 2009-1.

38-3-144. Requests for permission; grants of permission at director's discretion.

Any person seeking permission to use or display the nomenclature or symbols of the Georgia Emergency Management and Homeland Security Agency may request such permission in writing to the director. The director shall serve notice on the requesting party within 15 calendar days after receipt of the request of his or her decision on whether the person may use the nomenclature or the symbol. If the director does not respond within the 15 day time period, then the request is presumed to have been denied. The grant of permission under this article shall be at the discretion of the director and under such conditions as the director may impose.

(Code 1981, §38-3-144, enacted by Ga. L. 2008, p. 543, § 1/HB 1201; Ga. L. 2016, p. 91, § 16/SB 416.)

The 2016 amendment, effective July 1, 2016, inserted "and Homeland Security" in the first sentence.

38-3-145. Injunctions to restrain violations.

Whenever there shall be an actual or threatened violation of this article, the director shall have the right to apply to the Superior Court of Fulton County or to the superior court of the county of residence of the violator for an injunction to restrain the violation.

(Code 1981, §38-3-145, enacted by Ga. L. 2008, p. 543, § 1/HB 1201.)

38-3-146. Civil penalties for willful violators.

In addition to any other relief or sanction for a violation of this article, the director shall be entitled to collect a civil penalty in the amount of $1,000.00 for each violation from a willful violator. Further, the director shall be entitled to recover reasonable attorney's fees for bringing any action against a willful violator.

(Code 1981, §38-3-146, enacted by Ga. L. 2008, p. 543, § 1/HB 1201.)

38-3-147. Private cause of action; recovery of treble damages, punitive damages, and attorney's fees.

Any person who has given money or any other item of value to another person due in part to such person's use of agency nomenclature or symbols in violation of this article may maintain a suit for damages against the violator. Where it is proven that the violation was willful, the victim shall be entitled to recover treble damages, punitive damages, and reasonable attorney's fees.

(Code 1981, §38-3-147, enacted by Ga. L. 2008, p. 543, § 1/HB 1201.)

38-3-148. Criminal penalties for willful violators.

Any willful violator shall be guilty of a misdemeanor and upon conviction thereof shall be subject to a fine of not more than $5,000.00 or to imprisonment for not more than 12 months, or both. Each violation shall constitute a separate offense.

(Code 1981, §38-3-148, enacted by Ga. L. 2008, p. 543, § 1/HB 1201.)

ARTICLE 10 STATE-WIDE FIRST RESPONDER BUILDING MAPPING INFORMATION SYSTEM

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2008, Article 9, as enacted by Ga. L. 2008, p. 564, § 1, was redesignated as Article 10.

38-3-150. Legislative findings.

The General Assembly recognizes the extreme dangers present when the safety of our citizens requires first responders such as police and firefighters to evacuate or secure a building. To better prepare for responding to disasters, criminal acts, and acts of terrorism, the General Assembly intends to create a state-wide first responder building mapping information system that will provide first responders with information they need to be successful when disaster strikes. The first responder building mapping information system shall be developed for this limited and specific purpose and does not impose standards or system requirements on any other mapping systems used for any other purpose.

(Code 1981, §38-3-150, enacted by Ga. L. 2008, p. 564, § 1/SB 33.)

38-3-151. Definitions.

As used in this article, the term:

  1. "Agency" means the Georgia Emergency Management and Homeland Security Agency established by Code Section 38-3-20.
  2. "Building mapping information system" means a state-wide informational system containing maps of designated public buildings.
  3. "Director" means the director of the agency.

(Code 1981, §38-3-151, enacted by Ga. L. 2008, p. 564, § 1/SB 33; Ga. L. 2016, p. 91, § 17/SB 416.)

The 2016 amendment, effective July 1, 2016, inserted "and Homeland Security" in paragraph (1).

38-3-152. Creation and operation of building mapping information system; availability to government agencies; rules and regulations; federal funding sources; exemption of information from public disclosure; recommendations for training guidelines; limitations.

  1. Subject to availability of funds for such purposes, the agency may be authorized to create and operate a building mapping information system and may make grants to local governments for purposes of this article. Once the building mapping information system is operational, the agency shall make the building mapping information available electronically to all state, local, and federal public safety agencies.
  2. Once the building mapping information system is operational, it shall be within the discretion of state and local agencies to determine which government owned or leased buildings, if any, should be mapped, with special consideration given to schools, courthouses, and larger public structures utilized by large numbers of employees or private citizens. Nothing in this article shall require any state or local agency to map any building.
  3. State and local agencies electing to participate in the building mapping information system once such system is operational shall forward to the agency the building mapping information as provided in subsection (d) of this Code section. Any private entity or department or agency of the federal government that desires to participate in such system may also voluntarily forward its building mapping information to the agency. The agency may refuse any information that does not comply with the agency's specifications and requirements.
  4. The agency shall be authorized to develop rules and regulations for the purpose of implementing the provisions of this Code section. Such rules and regulations shall specify:
    1. The type of information to be included in the building mapping information system which shall at a minimum include floor plans, fire protection information, evacuation plans, utility information, known hazards, and text and digital images showing emergency personnel contact information;
    2. The building mapping software standards that shall be utilized by all entities participating in the building mapping information system; and
    3. Security procedures to ensure that the information shall only be made available to the government entity that either owns or operates the building or is responding to an emergency incident at the building.
  5. The agency may be authorized to pursue federal funds or other sources of funding for the creation and operation of the building mapping information system and shall be further authorized to seek or assist state and local agencies in obtaining grants or donations for the mapping of government owned or leased buildings.
  6. Information provided to the agency under this article shall be exempt from public disclosure to the extent provided in paragraph (31) of subsection (a) of Code Section 50-18-72.
  7. The agency may recommend training guidelines regarding use of the building mapping information system for law enforcement officers, firefighters, and other authorized emergency first responders.
  8. Nothing in this Code section supersedes the authority of state departments and agencies and local governments to control and maintain access to information within their independent systems.

(Code 1981, §38-3-152, enacted by Ga. L. 2008, p. 564, § 1/SB 33; Ga. L. 2012, p. 218, § 10/HB 397.)

The 2012 amendment, effective April 17, 2012, substituted "paragraph (31)" for "paragraph (21)" in subsection (f).

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2008, "paragraph" was substituted for "subparagraph" in subsection (f).

Law reviews.

- For article on the 2012 amendment of this Code section, see 29 Ga. St. U. L. Rev. 139 (2012).

38-3-153. Immunity from civil liability.

Local governments and agencies and their employees shall be immune from civil liability for any damages arising out of the creation and use of the building mapping information system unless it is shown that an employee acted with gross negligence or bad faith.

(Code 1981, §38-3-153, enacted by Ga. L. 2008, p. 564, § 1/SB 33.)

ARTICLE 11 UNIFORM EMERGENCY VOLUNTEER HEALTH PRACTITIONERS ACT

Effective date.

- This article became effective July 1, 2016.

38-3-160. Uniform Emergency Volunteer Health Practitioners Act.

This article shall be known and may be cited as the "Uniform Emergency Volunteer Health Practitioners Act."

(Code 1981, §38-3-160, enacted by Ga. L. 2016, p. 296, § 1/SB 230.)

Law reviews.

- For article, "Lurching from Complacency to Panic in the Fight Against Dangerous Microbes: A Blueprint for a Common Secure Future," see 67 Emory L.J. 337 (2018).

38-3-161. Definitions.

As used in this article, the term:

  1. "Credentialing" means obtaining, verifying, and assessing the qualifications of a health practitioner to provide treatment, care, or services in or for a health facility.
  2. "Disaster relief organization" means an entity that provides emergency or disaster relief services that include health services or veterinary services provided by volunteer health practitioners and that:
    1. Is designated or recognized as a provider of those services pursuant to a disaster response and recovery plan adopted by an agency of the federal government or the Georgia Emergency Management and Homeland Security Agency; or
    2. Regularly plans and conducts its activities in coordination with an agency of the federal government, the Department of Public Health, a local emergency management agency, a local public health district, or the Georgia Emergency Management and Homeland Security Agency.
  3. "Emergency" means an event or condition that is deemed a state of emergency or disaster under Code Section 38-3-51, a public health emergency under Code Section 31-12-1.1, a local emergency under Code Section 36-69-2, or an emergency declared by a state entity or official or by a federal entity or official, if such emergency includes the State of Georgia, under any other provision of Georgia or federal law.
  4. "Emergency declaration" means a state of emergency or disaster declared by the Governor pursuant to Code Section 38-3-51 or other applicable law or laws.
  5. "Emergency Management Assistance Compact" means the interstate compact approved by the United States Congress by Public Law No. 104-321,110 Stat. 3877 and enacted in this state as Article 5 of this chapter.
  6. "Entity" means a person other than an individual.
  7. "Health facility" means a hospital or other health facility licensed under Chapter 7 of Title 31, a veterinary facility as defined in Code Section 43-50-3, or any other similar entity licensed under the laws of another state to provide health services or veterinary services.
  8. "Health practitioner" means an individual licensed under the laws of this or another state to provide health services or veterinary services.
  9. "Health services" means the provision of treatment, care, advice, or guidance, or other services or supplies, related to the health or death of individuals or human populations to the extent necessary to respond to an emergency, including:
    1. The following, concerning the physical or mental condition or functional status of an individual or affecting the structure or function of the body:
      1. Preventive, diagnostic, therapeutic, rehabilitative, maintenance, or palliative care; and
      2. Counseling, assessment, procedures, or other services;
    2. The sale or dispensing of a drug, a device, equipment, or another item to an individual in accordance with a prescription; and
    3. Funeral, cremation, cemetery, or other mortuary services.
  10. "Host entity" means an entity operating in this state which uses volunteer health practitioners to respond to an emergency.
  11. "License" means authorization by a state to engage in health services or veterinary services that are unlawful without such authorization. The term includes authorization under the laws of this state to an individual to provide health services or veterinary services based upon a national certification issued by a public or private entity.
  12. "Person" means an individual, corporation, business trust, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
  13. "Privileging" means the authorizing by an appropriate authority, such as a governing body, of a health practitioner to provide specific treatment, care, or services at a health facility subject to limits based on factors that include license, education, training, experience, competence, health status, and specialized skill.
  14. "Scope of practice" means the extent of the authorization to provide health services or veterinary services granted to a health practitioner by a license issued to such health practitioner in the state in which the principal part of such health practitioner's services are rendered, including any conditions imposed by the licensing authority.
  15. "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
  16. "Veterinary services" means the provision of treatment, care, advice, or guidance, or other services or supplies, related to the health or death of an animal or to animal populations to the extent necessary to respond to an emergency, including:
    1. The diagnosis, treatment, or prevention of an animal disease, injury, or other physical or mental condition by the prescription, administration, or dispensing of vaccines, medicine, surgery, or therapy;
    2. The use of a procedure for reproductive management; and
    3. The monitoring and treatment of animal populations for diseases that have spread or demonstrate the potential to spread to humans.
  17. "Volunteer health practitioner" means a health practitioner who provides health services or veterinary services pursuant to this article at no charge to the patients receiving such services, so long as such health practitioner does not receive compensation in direct relation to those specific services. The term "volunteer health practitioner" shall not include a health practitioner who receives compensation pursuant to a preexisting employment relationship with a host entity or affiliate which requires such health practitioner to provide such health services to patients of such host entity or affiliate, unless such health practitioner is not a resident of this state and is employed by a disaster relief organization providing health services in this state while an emergency declaration is in effect.

(Code 1981, §38-3-161, enacted by Ga. L. 2016, p. 296, § 1/SB 230; Ga. L. 2018, p. 770, § 5/HB 956.)

The 2018 amendment, effective July 1, 2018, deleted "paragraph (16) of" preceding "Code Section 43-50-3" in the middle of paragraph (7).

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2016, "and Homeland Security" was inserted after "Georgia Emergency Management" in subparagraphs (2)(A) and (2)(B).

38-3-162. Applicability to volunteer health practitioners.

This article shall only apply to volunteer health practitioners registered with a registration system that complies with Code Section 38-3-164 and who provide health services or veterinary services in this state for a host entity while an emergency declaration is in effect.

(Code 1981, §38-3-162, enacted by Ga. L. 2016, p. 296, § 1/SB 230.)

38-3-163. Regulation of volunteer health practitioners during an emergency.

  1. For health services and veterinary services provided by volunteer health practitioners pursuant to this article while an emergency declaration is in effect, the Governor may waive, limit, restrict, or otherwise regulate:
    1. The duration of practice by such volunteer health practitioners with respect to such services;
    2. The geographical areas in which such volunteer health practitioners may practice with respect to such services;
    3. The types of volunteer health practitioners who may practice with respect to such services; and
    4. Any other matters necessary

      to coordinate effectively the provision of health services or veterinary services during the emergency.

  2. An order issued pursuant to subsection (a) of this Code section may take effect immediately, without prior notice or comment, and shall not be a rule within the meaning of Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."
  3. A host entity that uses volunteer health practitioners to provide health services or veterinary services in this state shall:
    1. Consult and coordinate its activities with the Georgia Emergency Management and Homeland Security Agency, consistent with the Georgia Emergency Operations Plan, to provide for the efficient and effective use of volunteer health practitioners; and
    2. Comply with the laws of this state relating to the management of emergency health services or veterinary services.

(Code 1981, §38-3-163, enacted by Ga. L. 2016, p. 296, § 1/SB 230.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2016, "and Homeland Security" was inserted after "Georgia Emergency Management" in paragraph (c)(1).

38-3-164. Registration systems.

  1. To qualify as a volunteer health practitioner registration system, a system shall:
    1. Accept applications for the registration of volunteer health practitioners before or during an emergency;
    2. Include information about the licensure and good standing of health practitioners which is accessible by authorized persons;
    3. Be capable of confirming the accuracy of information concerning whether a health practitioner is licensed and in good standing before health services or veterinary services are provided under this article; and
    4. Meet one of the following conditions:
      1. Be an emergency system for advance registration of volunteer health care practitioners established by a state and funded through the United States Department of Health and Human Services under Section 319I of the Public Health Services Act, 42 U.S.C. Section 247d-7b;
      2. Be a local unit consisting of trained and equipped emergency response, public health, and medical personnel formed pursuant to Section 2801 of the Public Health Services Act, 42 U.S.C. Section 300hh;

        (B.1) Be a member of an approved medical reserve corps;

      3. Be operated by a:
        1. Disaster relief organization;
        2. Licensing board;
        3. National or regional association of licensing boards or health practitioners;
        4. Health facility that provides comprehensive inpatient and outpatient health care services, including a tertiary care and teaching hospital; or
        5. Governmental entity; or
      4. Be designated by the Georgia Emergency Management and Homeland Security Agency as a registration system for purposes of this article.
  2. While an emergency declaration is in effect, the Georgia Emergency Management and Homeland Security Agency, consistent with the Georgia Emergency Operations Plan; a person authorized to act on behalf of the Georgia Emergency Management and Homeland Security Agency; or a host entity may confirm whether volunteer health practitioners utilized in this state are registered with a registration system that complies with subsection (a) of this Code section. Confirmation shall be limited to obtaining the identities of the volunteer health practitioners from the system and determining whether the system indicates that the volunteer health practitioners are licensed and in good standing.
  3. Upon request of a person in this state authorized under subsection (b) of this Code section, or a similarly authorized person in another state, a registration system located in this state shall notify the person of the identities of volunteer health practitioners and whether the volunteer health practitioners are licensed and in good standing.
  4. A host entity shall not be required to use the services of a volunteer health practitioner even if such volunteer health practitioner is registered with a registration system that indicates that such volunteer health practitioner is licensed and in good standing.

(Code 1981, §38-3-164, enacted by Ga. L. 2016, p. 296, § 1/SB 230.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2016, "and Homeland Security" was inserted after "Georgia Emergency Management" in subparagraph (a)(4)(D) and in two places in subsection (b).

38-3-165. Recognition of volunteer health practitioners licensed in other states.

  1. While an emergency declaration is in effect, a volunteer health practitioner registered with a registration system that complies with Code Section 38-3-164 and who is licensed and in good standing in the state upon which such volunteer health practitioner's registration is based may practice in this state to the extent authorized by this article as if such volunteer health practitioner were licensed in this state.
  2. A volunteer health practitioner qualified under subsection (a) of this Code section shall not be entitled to the protections of this article if such volunteer health practitioner is licensed in more than one state and any license of such volunteer health practitioner is suspended, revoked, or subject to an agency order limiting or restricting practice privileges or has been voluntarily terminated under threat of sanction.

(Code 1981, §38-3-165, enacted by Ga. L. 2016, p. 296, § 1/SB 230; Ga. L. 2017, p. 774, § 38/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised capitalization in subsection (b).

38-3-166. Credentialing or privileging standards of health facilities.

This article shall not affect credentialing or privileging standards of a health facility and shall not preclude a health facility from waiving or modifying those standards while an emergency declaration is in effect.

(Code 1981, §38-3-166, enacted by Ga. L. 2016, p. 296, § 1/SB 230.)

38-3-167. Limitation on services provided.

  1. Except as otherwise provided in this Code section, a volunteer health practitioner shall adhere to the scope of practice for a similarly licensed volunteer health practitioner established by the licensing provisions, practice acts, or other laws of this state.
  2. Except as otherwise provided in this article, this article shall not authorize a volunteer health practitioner to provide services that are outside such volunteer health practitioner's scope of practice, even if a similarly licensed volunteer health practitioner in this state would be permitted to provide such services.
  3. A host entity may restrict the health services or veterinary services that a volunteer health practitioner may provide pursuant to this article.
  4. A volunteer health practitioner shall not be considered to be engaging in unauthorized practice unless such volunteer health practitioner has reason to know of any limitation, modification, or restriction under this Code section or that a similarly licensed volunteer health practitioner in this state would not be permitted to provide such services. A volunteer health practitioner has reason to know of a limitation, modification, or restriction under this Code section or that a similarly licensed volunteer health practitioner in this state would not be permitted to provide a service if:
    1. The volunteer health practitioner knows the limitation, modification, or restriction exists or that a similarly licensed volunteer health practitioner in this state would not be permitted to provide such service; or
    2. From all the facts and circumstances known to the volunteer health practitioner at the relevant time, a reasonable person would conclude that the limitation, modification, or restriction exists or that a similarly licensed volunteer health practitioner in this state would not be permitted to provide such service.
  5. In addition to the authority granted by the laws of this state other than this article to regulate the conduct of health practitioners, a licensing board or other disciplinary authority in this state:
    1. May impose administrative sanctions upon a health practitioner licensed in this state for conduct outside of this state in response to an out-of-state emergency;
    2. May impose administrative sanctions upon a health practitioner not licensed in this state for conduct in this state in response to an in-state emergency; and
    3. Shall report any administrative sanctions imposed upon a health practitioner licensed in another state to the appropriate licensing board or other disciplinary authority in any other state in which such health practitioner is known to be licensed.
  6. In determining whether to impose administrative sanctions under subsection (e) of this Code section, a licensing board or other disciplinary authority shall consider the circumstances in which the conduct took place, including any exigent circumstances, and the health practitioner's scope of practice, education, training, experience, and specialized skill.

(Code 1981, §38-3-167, enacted by Ga. L. 2016, p. 296, § 1/SB 230.)

38-3-168. Construction with other provisions; inclusion.

  1. This article shall not limit rights, privileges, or immunities provided to volunteer health practitioners by laws other than this article. Except as otherwise provided in subsection (b) of this Code section, this article shall not affect requirements for the use of health practitioners pursuant to the Emergency Management Assistance Compact.
  2. The Georgia Emergency Management and Homeland Security Agency, pursuant to the Emergency Management Assistance Compact, may incorporate into the emergency forces of this state volunteer health practitioners who are not officers or employees of this state, a political subdivision of this state, or a municipality or other local government within this state.

(Code 1981, §38-3-168, enacted by Ga. L. 2016, p. 296, § 1/SB 230.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2016, "and Homeland Security" was inserted after "Georgia Emergency Management" in subsection (b).

38-3-169. Regulatory authority.

The Department of Public Health may promulgate rules and regulations to implement this article. In doing so, the Department of Public Health shall consult with and consider the recommendations of the Georgia Emergency Management and Homeland Security Agency, consistent with the Georgia Emergency Operations Plan, and shall also consult with and consider rules and regulations promulgated by similarly empowered agencies in other states to promote uniformity of application of this article and make the emergency response systems in the various states reasonably compatible.

(Code 1981, §38-3-169, enacted by Ga. L. 2016, p. 296, § 1/SB 230.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2016, "and Homeland Security" was inserted after "Georgia Emergency Management".

38-3-170. Liability of volunteer health practioners.

  1. Except as provided in subsection (c) of this Code section, a volunteer health practitioner who provides health services or veterinary services pursuant to this article shall not be liable for damages for his or her act or omission in providing such health services or veterinary services.
  2. No person shall be vicariously liable for damages for an act or omission of a volunteer health practitioner if such volunteer practitioner is not liable for the damages under subsection (a) of this Code section.
  3. This Code section shall not limit the liability of a volunteer health practitioner for:
    1. Willful misconduct or wanton, grossly negligent, reckless, or criminal conduct;
    2. An intentional tort;
    3. Breach of contract;
    4. A claim asserted by a host entity or by an entity located in this or another state which employs or uses the services of the volunteer health practitioner; or
    5. An act or omission relating to the operation of a motor vehicle, vessel, aircraft, or other vehicle.
  4. A person that, pursuant to this article, operates, uses, or relies upon information provided by a volunteer health practitioner registration system shall not be liable for damages for an act or omission relating to that operation, use, or reliance unless such act or omission is an intentional tort or is willful misconduct or wanton, grossly negligent, reckless, or criminal conduct.
  5. In addition to the protections provided in subsection (a) of this Code section, a volunteer health practitioner who provides health services or veterinary services pursuant to this article shall be entitled to all the rights, privileges, or immunities which may otherwise be provided by law.

(Code 1981, §38-3-170, enacted by Ga. L. 2016, p. 296, § 1/SB 230.)

38-3-171. Uniformity.

In applying and construing this uniform Act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

(Code 1981, §38-3-171, enacted by Ga. L. 2016, p. 296, § 1/SB 230.)

ARTICLE 12 EMERGENCY COMMUNICATIONS AUTHORITY

Effective date.

- This article became effective January 1, 2019. See the Editor's notes.

Editor's notes.

- Ga. L. 2018, p. 689, § 4-1/HB 751, not codified by the General Assembly, provides that: "(a) This Act shall become effective July 1, 2018, for the purposes of creating the Georgia Emergency Communications Authority and appointing the members thereof and the enactment of Section 2-11 and the provisions regarding billing practices contained in subsection (d) of Code Section 38-3-189. For all other purposes, this Act shall become effective on January 1, 2019.

"(b) The provisions of this Act shall not in any manner diminish, extinguish, reduce, or affect any cause of action for audits, services, or the recovery of funds from service providers which may have existed prior to January 1, 2019. Any such cause of action is expressly preserved."

38-3-180. Short title.

This article shall be known and may be cited as the "Georgia Emergency Communications Authority Act."

(Code 1981, §38-3-180, enacted by Ga. L. 2018, p. 689, § 1-1/HB 751.)

38-3-181. Definitions.

As used in this article, the term:

  1. "Authority" means the Georgia Emergency Communications Authority established pursuant to Code Section 38-3-182.
  2. "Board of directors" or "board" means the governing body of the authority.
  3. "Emergency 9-1-1 system" or "9-1-1 system" has the same meaning as provided in Code Section 46-5-122.
  4. "Enhanced ZIP Code" has the same meaning as provided in Code Section 46-5-122.
  5. "Local government" means a county, municipality, regional authority, or consolidated government in this state that operates or contracts for the operation of a public safety answering point and has adopted a resolution or ordinance pursuant to Code Section 46-5-133 to impose 9-1-1 charges under Code Section 46-5-134.
  6. "Next Generation 9-1-1" or "NG911" is a secure, nationwide, interoperable, standards-based, all Internet protocol emergency communications infrastructure enabling end-to-end transmission of all types of data, including, but not limited to, voice and multimedia communications from the public to a public safety answering point.
  7. "9-1-1 charge" has the same meaning as provided in Code Section 46-5-122.
  8. "Public safety answering point" has the same meaning as provided in Code Section 46-5-122.
  9. "Service supplier" has the same meaning as provided in Code Section 46-5-122.
  10. "Telephone subscriber" has the same meaning as provided in Code Section 46-5-122.
  11. "Wireless enhanced 9-1-1 charge" has the same meaning as provided in Code Section 46-5-122.

(Code 1981, §38-3-181, enacted by Ga. L. 2018, p. 689, § 1-1/HB 751.)

38-3-182. Establishment of Georgia Emergency Communications Authority; purpose; duties and responsibilities; board of directors; perpetual existence; power and authority; operation; regulation.

    1. There is established the Georgia Emergency Communications Authority as a body corporate and politic, an instrumentality of the state, and a public corporation, and by that name the authority may contract and be contracted with and defend and bring actions, including, but not limited to, a private right of action to enforce this article. The authority shall be an entity within the Georgia Emergency Management and Homeland Security Agency and attached to said agency for all operational purposes.
    2. All local governments as of July 1, 2018, shall be members of the authority. Additional local governments shall become members upon adoption of a resolution or ordinance to impose the monthly 9-1-1 charge as authorized by Code Section 46-5-133 and contingent upon approval by the authority which shall not be unreasonably withheld. Any local government member of the authority that ceases operating or contracting for the operation of a public safety answering point shall withdraw from the authority subject to the terms of any contract, obligation, or agreement with the authority.
  1. The primary purpose of the authority shall be to administer, collect, audit, and remit 9-1-1 revenues for the benefit of local governments, as specified in this article, and on such terms and conditions as may be determined to be in the best interest of the operation of local governments in light of the following factors:
    1. The public interest in providing cost-efficient collection of revenues;
    2. Increasing compliance in collection of revenues;
    3. Easing the administrative burden on vendors and service suppliers; and
    4. Such other factors as are in the public interest and welfare of the citizens of Georgia.
  2. In addition to the purposes specified in subsection (b) of this Code section, the authority shall have the duties and responsibilities to:
    1. Apply for, receive, and use federal grants or state grants or both;
    2. Study, evaluate, and recommend technology standards for the regional and state-wide provision of a public safety communications network and 9-1-1 system;
    3. Identify any changes necessary to accomplish more effective and efficient 9-1-1 service across this state including consolidation and interoperability of 9-1-1 systems;
    4. Identify any changes necessary in the assessment and collection of fees under Part 4 of Article 2 of Chapter 5 of Title 46;
    5. Develop, offer, or make recommendations to the Georgia Public Safety Training Center, Georgia Peace Officer Standards and Training Council, and other state agencies as to training that should be provided to telecommunicators, trainers, supervisors, and directors of public safety answering points;
    6. Recommend minimum standards for operation of public safety answering points;
    7. Collect data and statistics regarding the performance of public safety answering points; and
    8. Identify any necessary changes or enhancements to develop and deploy NG911 statewide.
    1. Control and management of the authority shall be vested in a board of directors which shall consist of the following:
      1. The commissioner of public safety or his or her designee;
      2. The commissioner of revenue or his or her designee;
      3. The director of the Georgia Public Safety Training Center or his or her designee;
      4. Three members appointed by the Governor who shall be 9-1-1 directors, each of whom shall be currently employed by a public safety answering point. The Georgia 9-1-1 Directors Association, the Georgia Chapter of the Association of Public Safety Communications Officials, and the Georgia Chapter of the National Emergency Number Association may provide recommendations to the Governor for such appointments;
      5. One member appointed by the Governor who shall be an elected member of a county governing authority that operates or contracts for the operation of a public safety answering point. The Association County Commissioners of Georgia may provide recommendations to the Governor for such appointment;
      6. One member appointed by the Governor who shall be a county manager, county administrator, or finance officer from a county that operates or contracts for the operation of a public safety answering point. The Association County Commissioners of Georgia may provide recommendations to the Governor for such appointment;
      7. One member appointed by the Governor who shall be an elected member of a city governing authority that operates or contracts for the operation of a public safety answering point. The Georgia Municipal Association may provide recommendations to the Governor for such appointment;
      8. One member appointed by the Governor who shall be a city manager, city administrator, or finance officer from a city that operates or contracts for the operation of a public safety answering point. The Georgia Municipal Association may provide recommendations to the Governor for such appointment;
      9. Two members from the telecommunications industry who shall be appointed by the Governor;
      10. One member appointed by the Governor who is a sheriff responsible for managing a public safety answering point. The Georgia Sheriffs' Association may provide recommendations to the Governor for such appointment;
      11. One police chief appointed by the Governor who is serving a local government. The Georgia Association of Chiefs of Police may provide recommendations to the Governor for such appointment; and
      12. One fire chief appointed by the Governor who is serving a local government. The Georgia Association of Fire Chiefs may provide recommendations to the Governor for such appointment.
    2. The initial term for appointments made pursuant to subparagraphs (D), (E), (F), (G), and (H) of paragraph (1) of this subsection shall be from July 1, 2018, until June 30, 2021. The initial term for appointments made pursuant to subparagraphs (I), (J), (K), and (L) of paragraph (1) of this subsection shall be from July 1, 2018, until June 30, 2020. All subsequent terms shall be for three years. Any vacancies that occur prior to the end of a term shall be filled by appointment in the same manner as the original appointment and shall be for the remainder of the unexpired term.
    3. The board may appoint additional persons to serve in an advisory role to the board. Such advisers shall be nonvoting and shall not be counted in ascertaining if a quorum is present.
    4. Members of the board of directors shall receive no compensation for their services but may be authorized by the authority to receive an expense allowance and reimbursement from funds of the authority in the same manner as provided for in Code Section 45-7-21, but only in connection with the member's physical attendance at a meeting of the board.
    5. Nine members of the board of directors shall constitute a quorum, and the affirmative votes of a majority of a quorum shall be required for any action to be taken by the board.
    6. The executive director of the authority shall convene the initial meeting of the board of the authority no later than September 1, 2018, at which time the board shall elect one of its members as chairperson. In addition, the board shall elect from its membership a vice chairperson and a secretary/treasurer.
    7. The board of directors shall promulgate bylaws and may adopt other procedures for governing its affairs and for discharging its duties as may be permitted or required by law or applicable rules and regulations.
  3. The authority shall have perpetual existence.
  4. The authority through its board of directors shall have the power and authority to:
    1. Have a seal and alter the same at its pleasure;
    2. Make and execute contracts, lease agreements, and all other instruments necessary or convenient to exercise the powers of the authority or to further the public purpose for which the authority is created;
    3. Acquire by purchase, lease, or otherwise and to hold, lease, and dispose of real or personal property of every kind and character, or any interest therein, in furtherance of the purpose of the authority;
    4. Apply for and to accept any gifts or grants, loan guarantees, loans of funds, property, or financial or other aid in any form from the federal government or any agency or instrumentality thereof, from the state government or any agency or instrumentality thereof, or from any other source for any or all purposes specified in this article and to comply, subject to the provisions of this article, with the terms and conditions thereof;
    5. Deposit or otherwise invest funds held by it in any state depository or in any investment that is authorized for the investment of proceeds of state general obligation bonds and to use for its corporate purposes or redeposit or reinvest interest earned on such funds;
    6. Exercise any powers granted by the laws of this state to public or private corporations that are not in conflict with the public purpose of the authority;
    7. Do all things necessary or convenient to carry out the powers conferred by this article and to carry out such duties and activities as are specifically imposed upon the authority by law;
    8. Bring and defend actions;
    9. Provide for the collection of moneys;
    10. Manage, control, and direct proceeds retained under subsection (a) of Code Section 38-3-188 and the expenditures made therefrom;
    11. Distribute the proceeds identified under subsection (b) of Code Section 38-3-188 in such manner and subject to such terms and limitations as provided by such Code section; and
    12. Exercise all other powers necessary for the development and implementation of the duties and responsibilities provided for in this article.
  5. The creation of the authority and the carrying out of its purpose under this article are in all respects for the benefit of the people of this state. The authority shall be carrying out an essential governmental function on behalf of local governments in the exercise of the powers conferred upon it by this article and is, therefore, given the same immunity from liability for carrying out its intended functions as other state officials and employees.
  6. The authority shall not be required to pay taxes or assessments upon any real or personal property acquired under its jurisdiction, control, possession, or supervision.
  7. All moneys received by the authority pursuant to this article shall be deemed to be trust funds to be held and applied solely as provided in this article.
  8. This article, being for the welfare of the state and its inhabitants, shall be liberally construed to effect the purposes thereof.
  9. Notwithstanding any provision of this Code section to the contrary, the authority shall have no jurisdiction concerning the setting of rates, terms, and conditions for the offering of telecommunications services, as defined in Code Section 46-5-162, or for the offering of broadband service, VoIP, or wireless service, as such terms are defined in Code Section 46-5-221.
  10. The board shall be subject to and shall comply with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," in the same manner as an agency as such term is defined in Code Section 50-13-2. The board may promulgate and amend, from time to time, such rules or regulations, consistent with this article and Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," as it deems consistent with or required for the public welfare, for the administration of any provision of this article, or for the orderly conduct of the board's affairs. Any claim by the authority that a service supplier has violated any provision of this article shall be adjudicated as a contested proceeding under Code Section 50-13-13 and be subject to judicial review under Code Section 50-13-19.

(Code 1981, §38-3-182, enacted by Ga. L. 2018, p. 689, § 1-1/HB 751; Ga. L. 2019, p. 1056, § 38/SB 52.)

The 2019 amendment, effective May 12, 2019, part of an Act to revise, modernize, and correct the Code, substituted "The commissioner of public safety" for "The commissioner of the Department of Public Safety" in subparagraph (d)(1)(A); substituted "The commissioner of revenue" for "The commissioner of the Department of Revenue" in subparagraph (d)(1)(B); and substituted "construed to effect" for "construed to affect" at the end of subsection (j).

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2018, "Georgia Peace Officer Standards and Training Council" was substituted for "Georgia Peace Officers and Standards Training Council" in paragraph (c)(5).

JUDICIAL DECISIONS

Cited in Bellsouth Telecomms., LLC v. Cobb County, 352 Ga. App. 110, 834 S.E.2d 124 (2019).

38-3-183. Appointment of executive director; role; additional staffing.

The director of the Georgia Emergency Management and Homeland Security Agency shall appoint an executive director, subject to approval by the board, who shall be the administrative head of the authority, and shall establish the salary of the executive director. The executive director shall serve at the pleasure of such director. The executive director, with the concurrence and approval of such director, shall hire officers, agents, and employees; prescribe their duties, responsibilities, and qualifications; set their salaries; and perform such other duties as may be prescribed by the authority. Such officers, agents, and employees shall serve at the pleasure of the executive director.

(Code 1981, §38-3-183, enacted by Ga. L. 2018, p. 689, § 1-1/HB 751.)

38-3-184. Role of Attorney General.

The Attorney General shall provide legal services for the authority and, in connection therewith, Code Sections 45-15-13 through 45-15-16 shall be fully applicable.

(Code 1981, §38-3-184, enacted by Ga. L. 2018, p. 689, § 1-1/HB 751.)

38-3-185. Remission of 9-1-1 and enhanced 9-1-1 charges.

  1. Beginning January 1, 2019, all 9-1-1 charges and all wireless enhanced 9-1-1 charges imposed by the governing authority of a local government pursuant to Code Section 46-5-133 and collected by a service supplier pursuant to Code Sections 46-5-134 and 46-5-134.1 shall be remitted monthly by each service supplier to the authority not later than the twentieth day of the month following the month in which they are collected. Any charges not remitted in a timely manner shall accrue interest at the rate specified in Code Section 48-2-40, until the date they are paid.
    1. Each service supplier collecting and remitting 9-1-1 and wireless enhanced 9-1-1 charges to the authority pursuant to subsection (a) of this Code section shall submit with the remitted charges a report identifying the amount of the charges being collected and remitted from telephone subscribers attributable to each county or municipality that operates a public safety answering point, including counties and municipalities that operate multijurisdictional or regional 9-1-1 systems or have created a joint authority pursuant to Code Section 46-5-138.
    2. For purposes of the monthly report required in paragraph (1) of this subsection, the service supplier shall attempt to utilize enhanced ZIP Codes. If an enhanced ZIP Code designation is not available for an address or if the service supplier is unable to determine the applicable enhanced ZIP Code designation after exercising due diligence to determine the designation, the service supplier may apply the five-digit ZIP Code to that address. For purposes of this subsection, there is a rebuttable presumption that a service supplier has exercised due diligence if the service supplier has attempted to determine the enhanced ZIP Code designation by utilizing software used by the Streamlined Sales Tax Governing Board pursuant to Code Section 48-8-70.

(Code 1981, §38-3-185, enacted by Ga. L. 2018, p. 689, § 1-1/HB 751.)

38-3-186. Contracting with Department of Revenue for collection and disbursement of charges remitted and for collection and disbursement of prepaid wireless 9-1-1 charges.

  1. The authority shall contract with the Department of Revenue for the collection and disbursement of charges remitted to the authority under subsection (a) of Code Section 38-3-185, other than prepaid wireless 9-1-1 charges under Code Section 46-5-134.2. Under such nonmonetary contract and to defray the cost of administering such collection and disbursement, the Department of Revenue shall receive payment equal to 1 percent of the total amount of the gross charges remitted to the authority under subsection (a) of Code Section 38-3-185, other than prepaid wireless 9-1-1 charges under Code Section 46-5-134.2.
  2. The authority shall also contract with the Department of Revenue for the collection and disbursement of prepaid wireless 9-1-1 charges remitted to counties and municipalities under Code Section 46-5-134.2. Under such nonmonetary contract and to defray the cost of administering such collection and disbursement, the Department of Revenue shall receive payment equal to 1 percent of the total amount of the gross charges remitted to the authority or Department of Revenue under Code Section 46-5-134.2.

(Code 1981, §38-3-186, enacted by Ga. L. 2018, p. 689, § 1-1/HB 751.)

38-3-187. Planning and implementation of state-wide public safety communications network.

The authority and telecommunications service suppliers shall work in cooperation with the state to plan for and implement a state-wide public safety communications network.

(Code 1981, §38-3-187, enacted by Ga. L. 2018, p. 689, § 1-1/HB 751.)

38-3-188. Retention of funds by Department of Revenue; payments to local governments.

  1. The Department of Revenue shall retain from the charges remitted to it pursuant to subsection (a) of Code Section 38-3-185 and pursuant to Code Section 46-5-134.2 an amount equal to 1 percent of the total amount of such charges and remit such amount to the authority.
  2. Except for the amounts retained by the authority, Department of Revenue, and service suppliers pursuant to Code Sections 38-3-186 and 46-5-134 and this Code section, the remainder of the charges remitted by service suppliers shall be paid by the Department of Revenue to each local government on a pro rata basis based on the remitted amounts attributable to each such local government reported by service suppliers in the reports required by subsection (b) of Code Section 38-3-185. Such payments shall be made by the Department of Revenue to such local governments not later than 30 days following the date charges must be remitted by service suppliers to the Department of Revenue pursuant to subsection (a) of Code Section 38-3-185. Under no circumstances shall such payments be, or be deemed to be, revenues of the state and such payments shall not be subject to or available for appropriation by the state for any purpose.

(Code 1981, §38-3-188, enacted by Ga. L. 2018, p. 689, § 1-1/HB 751.)

38-3-189. Audit; penalties for noncompliance; approval of billing practices.

    1. Beginning January 1, 2019, the authority is authorized to employ or contract with an independent auditor or the Department of Revenue to audit the financial and business records of any service supplier offering communication services capable of connecting 9-1-1 service to the extent necessary to ensure proper collection and remittance of charges in accordance with this article and with Part 4 of Article 2 of Chapter 5 of Title 46. If the authority chooses to contract with the Department of Revenue to audit the financial and business records of any service supplier offering communication services capable of connecting 9-1-1 service, the contract shall be nonmonetary and any and all costs associated with the performance of such audits shall be considered paid for by the administrative fee retained by the Department of Revenue under Code Section 38-3-186. Under no circumstances shall the Department of Revenue retain any additional charges for the purpose of conducting such audits. Such audits shall apply only to charges required to be imposed and collected pursuant to Part 4 of Article 2 of Chapter 5 of Title 46 on or after January 1, 2019. Any audits other than those conducted by the Department of Revenue shall be conducted at the authority's sole expense. The Department of Revenue shall provide to the authority access to all of the department's collection data and records of monthly returns of service suppliers under this Code section. Except as provided by Code Section 38-3-190, such data and records shall not be used by the authority for any purpose other than audits under this Code section and shall otherwise retain any confidential status while in the possession of or use by the authority or others retained by the authority.
    2. The board shall develop a schedule for auditing service suppliers according to criteria adopted by the board. Such schedule shall provide for an audit of a service supplier not more than once every three years. Any such audit shall cover a representative sample of the service supplier's customer base in the state.
    3. Any claim by the authority seeking to adjust the amount of any billing, remittance, or charge reported by the service supplier as required under Code Section 38-3-185 or imposing any penalty shall be limited to a period of three years prior to the date of the initial notice to the service supplier of the audit.
  1. Failure of a service supplier to comply with any audit required under paragraph (2) of subsection (a) of this Code section, when notice of such audit has been duly served upon a service supplier's registered agent, shall result in a civil penalty of not more than $1,000.00 per day for each day the service supplier refuses to comply, commencing on a date certain as stated in such notice, which in no case shall be less than 45 days, unless otherwise agreed in writing by the parties. A good faith attempt by a service supplier to comply with any such audit shall serve as a defense to a claim of failure to comply in any contested proceeding under Code Section 50-13-13 or judicial review under Code Section 50-13-19, and if upheld, there shall be no civil penalty.
  2. Willful failure of any service supplier to have billed the monthly charges under Code Section 38-3-185 or 46-5-134.2 or to have remitted such collected charges as required shall be subject to a civil penalty of not more than $25,000.00 in the aggregate or 3 percent of the amount that should have been remitted, whichever is less. The civil penalty shall be in addition to the amount that should have been remitted and shall accrue interest at the rate specified in Code Section 48-2-40. The remedy set forth in this Code section shall be enforced solely by the authority and shall be the only remedy for any claim against a service supplier for failure to bill or remit the monthly charges under Code Section 38-3-185 or 46-5-134.2.
    1. A service supplier shall not incur any liability, including, but not limited to, liability for the payment of unbilled or unremitted charges, for any billing practice previously or subsequently approved in writing by the authority or otherwise approved pursuant to paragraph (2) of this subsection. A service supplier may request that the authority approve a billing practice by a written request sent to the executive director of the authority by certified mail. The authority may request additional information from the service supplier regarding the billing practice.
      1. The authority shall issue a written decision within 90 days of the executive director's receipt of the service supplier's written request for approval of the billing practice; provided, however, that the authority may, in its discretion, either request additional information or determine that it needs more time, in which case the authority shall provide notice of same to the service supplier and a single additional 90 day period shall commence.
      2. In the event the authority does not issue a written decision within the time period specified under subparagraph (A) of this paragraph, the billing practice shall be deemed approved pursuant to this subsection.
    2. The written approval of a billing practice under this subsection or the approval of a billing practice under subparagraph (B) of paragraph (2) of this subsection shall not impair or prohibit the board from adopting and implementing subsequently new requirements by rule or regulation that the board deems appropriate which supersede any such prior approved billing practices; provided, however, that in no case shall any approval of a billing practice by the authority be superseded for a period of at least three years following the date of approval.

(Code 1981, §38-3-189, enacted by Ga. L. 2018, p. 689, § 1-1/HB 751.)

JUDICIAL DECISIONS

Cited in Bellsouth Telecomms., LLC v. Cobb County, 352 Ga. App. 110, 834 S.E.2d 124 (2019).

38-3-190. Confidential nature of information; aggregate complying of data and release; compliance with judicial orders.

  1. Except as otherwise provided in this Code section, all information submitted by a service supplier to the authority or Department of Revenue pursuant to this article shall be presumed to be confidential, proprietary, a trade secret, or subject to exemption from disclosure under state or federal law and shall not be subject to disclosure under Article 4 of Chapter 18 of Title 50. Except as provided in this Code section, such information shall not be released to any person other than to the submitting service supplier, the authority, or auditors or attorneys employed by or under contract with the authority or the Georgia Emergency Management and Homeland Security Agency without the express permission of the submitting service supplier. Members of the authority shall also have access to information for the purpose of determining the accuracy of collections and remittances of individual service suppliers related to the member's jurisdiction. Such information shall be used solely for the purposes stated under this article.
  2. Information collected by the authority and Department of Revenue related to this article and Part 4 of Article 2 of Chapter 5 of Title 46 may be publicly released or published but only in aggregate amounts that do not identify or allow identification of numbers of subscribers or revenues attributable to an individual service supplier. All requests for information shall be submitted to the authority and not directly to the Department of Revenue.
  3. Nothing in this Code section shall prohibit the authority or Department of Revenue from complying with a court order or request of a state or federal grand jury, taxing or regulatory authority, law enforcement agency, or prosecuting attorney in conjunction with an ongoing administrative, criminal, or tax investigation.

(Code 1981, §38-3-190, enacted by Ga. L. 2018, p. 689, § 1-1/HB 751.)

38-3-191. Limitation on use of funds, rights, and privileges.

All funds, distributions, revenues, grants, appropriations, and rights and privileges of value of every nature accruing to the authority shall be used only for the purpose of developing, maintaining, administering, managing, and promoting the authority, state-wide 9-1-1 advancements, and state-wide public safety communications interoperability and may never be appropriated for any other purpose.

(Code 1981, §38-3-191, enacted by Ga. L. 2018, p. 689, § 1-1/HB 751.)

CHAPTER 4 VETERANS AFFAIRS

Article 1 Department of Veterans Service.
Article 2 Veterans Benefits.
Part 1 VETERANS EDUCATION.
Part 2 WAR VETERANS HOME.
Part 3 GEORGIA VETERANS CEMETERIES.
Part 4 RETURNING VETERANS TASK FORCE.
Cross references.

- Creation of veterans court division, § 15-1-17.

Instructional activities focusing on veterans and the armed forces, § 20-2-147.

Courtesy nonresident fishing licenses to certain paralyzed or disabled veterans, § 27-2-4.2.

Reports on veterans exposed to Agent Orange, T. 31, C. 30.

Unemployment benefit rights of persons who entered armed services during period of national emergency, § 34-8-157.

Authority of counties, cities, and others to furnish buildings, offices, and meeting halls to nationally recognized veterans' organizations, § 38-1-2.

Special license plates for disabled veterans, § 40-2-68 et seq.

Special license plates for former prisoners of war, § 40-2-73.

Veterans', honorary, and distinctive drivers' licenses, § 40-5-36.

Point credit for veterans taking examinations given by state examining boards, § 43-1-9 et seq.

License fee exemptions for disabled veterans conducting businesses or peddling operations in counties and municipalities, T. 43, C. 12.

Civil service preference for veterans generally, § 45-2-20 et seq.

Editor's notes.

- By resolution (Ga. L. 1985, p. 576), the General Assembly designated the North Rome Connector between Highway 53 and Highway 27 in the City of Rome as the "Veterans Memorial Highway." By resolution (Ga. L. 1988, p. 803), the General Assembly authorized the Georgia Veterans of Foreign Wars to place a bust of the late James H. "Sloppy" Floyd in the foyer of the James H. "Sloppy" Floyd Veterans Memorial Building. By resolution (Ga. L. 1988, p. 2071), the General Assembly authorized the Georgia Building Authority to select a site on the grounds of the James H. "Sloppy" Floyd Veterans Memorial Building to erect the Vietnam Memorial.

RESEARCH REFERENCES

ALR.

- Constitutionality of welfare acts for veterans of world war, 22 A.L.R. 1542.

Constitutionality of state statutes or ordinances providing for use of public funds or other public property for benefit of persons engaged in military service or veterans of such service, 162 A.L.R. 938.

ARTICLE 1 DEPARTMENT OF VETERANS SERVICE

Cross references.

- Veterans Service Board, Ga. Const. 1983, Art. IV, Sec. V, Para. I.

38-4-1. Department of Veterans Service and Veterans Service Board - Created; commissioner; officers; appointment; Senate confirmation; term; duties.

  1. There is created within the state government a Department of Veterans Service. The Department of Veterans Service shall be administered by a commissioner of veterans service and a Veterans Service Board comprised of seven members appointed by the Governor. The commissioner of veterans service shall be the executive officer of the department and shall be charged with the administrative responsibilities of the department in conformity with the orders, rules, and regulations of the Veterans Service Board. The original appointments of the members of the board shall be for terms of one, two, three, four, five, six, and seven years, respectively. Except in cases of vacancy, all terms and appointments of members of the Veterans Service Board after the original appointments shall be for seven years. No person shall be appointed to the Veterans Service Board and no person shall be eligible for the office of commissioner of veterans service except persons who have honorably served not less than three months in the armed services of the United States during a war in which the United States was engaged. All persons serving as members of the board or as commissioner under the terms of this article shall be residents of this state for a period of five years unless they were residents of this state at the time they volunteered, enlisted, or were inducted in the armed services of the United States. There shall be a chairman, vice-chairman, and secretary of the Veterans Service Board annually elected from among its own membership.
  2. The members of the Veterans Service Board shall be confirmed by the Senate. All members of the board and the commissioner of veterans service shall hold office until their successors are appointed and qualified. Any appointment of a member of the board for a full term made when the Senate is not in session shall be effective only until the same is acted upon by the Senate.
  3. As used in this article, the term "commissioner" shall mean the "commissioner of veterans service."

(Ga. L. 1896, p. 65, § 5; Penal Code 1910, § 1469; Ga. L. 1923, p. 121, §§ 1, 4; Ga. L. 1926, Ex. Sess., p. 53, § 1; Ga. L. 1931, p. 7, §§ 9, 10; Code 1933, § 78-101; Ga. L. 1945, p. 315, § 1; Ga. L. 1972, p. 1015, § 2301; Ga. L. 1978, p. 2219, § 1; Ga. L. 1983, p. 1401, § 2.)

Cross references.

- Veterans Service Board, Ga. Const. 1983, Art. IV, Sec. V, Para. I.

Editor's notes.

- Ga. L. 1983, p. 1401, § 1, not codified by the General Assembly, provides: "It is the intent of this Act to implement certain changes required by Article IV, Section V, Paragraph I, subparagraph (b) of the Constitution of the State of Georgia."

OPINIONS OF THE ATTORNEY GENERAL

Joint responsibility for administration of veterans affairs.

- Former Code 1933, §§ 78-101, 78-102, and 78-104 (see O.C.G.A. §§ 38-4-1,38-4-6, and38-4-7) place a joint responsibility on the director (now commissioner), as executive officer of the Department of Veterans Service, and the Veterans Service Board in the administration of all matters pertaining to the affairs of veterans. 1945-47 Op. Att'y Gen. p. 462.

Respective duties of board and director.

- It is the duty of the Veterans Service Board to prescribe by regulations or orders the broad policies or general plan by which the affairs of the department are to be conducted. The actual duty of executing these policies and directing the day to day activities of the department are vested in the director (now commissioner), who alone has the duty of determining the routine details as to the manner of execution, and the selection, hiring, discharge, and supervision of employees of the department. 1958-59 Op. Att'y Gen. p. 318.

When the board established a policy or rule governing the transaction of the department's business, the board's authority was expended. While it was the duty of the director (now commissioner) to execute, implement, and give effect to all such lawful policies and rules, former Code 1933, § 78-101 et eq. (see O.C.G.A. § 38-4-1 et seq.) did not provide that the board shall itself administer the policies or rules or interfere with the director (now commissioner) in performing the administrative duties vested in the director by law. 1958-59 Op. Att'y Gen. p. 318.

RESEARCH REFERENCES

Am. Jur. 2d.

- 63C Am. Jur. 2d, Public Officers and Employees, §§ 4, 48 et seq., 80, 81, 137 et seq, 142, 143. 77 Am. Jur. 2d, Veterans and Veterans' Laws, § 21 et seq.

24A Am. Jur. Pleading and Practice Forms, Veterans and Veterans' Laws, § 3.

C.J.S.

- 67 C.J.S., Officers and Public Employees, §§ 21 et seq., 48 et seq., 86 et seq.

38-4-2. Powers; appointment of executive directors of veterans' homes.

  1. The Department of Veterans Service and the Veterans Service Board are authorized:
    1. To apply for and to accept gifts, grants, and other contributions from the federal government or from any other governmental unit;
    2. To use the funds received from the federal government or from any other governmental unit for the purposes authorized and directed by the federal government or such other governmental unit in making the funds available;
    3. To accept and use gifts, grants, donations, and contributions of real estate, both vacant and improved, facilities, moneys, services, or other property from individuals, firms, corporations, organizations, and associations and from county and municipal corporations and their subdivisions, in addition to any funds appropriated by the state; and
    4. To construct and operate hospitals, nursing homes, nursing care homes, assisted living communities, and personal care homes for the use and care of war veterans discharged under other than dishonorable conditions and to pay the cost of construction of the hospitals, nursing homes, nursing care homes, assisted living communities, and personal care homes. The term "cost of the construction" as used in this paragraph shall embrace the cost of construction; the cost of all lands, properties, rights, and easements acquired; the cost of all machinery and equipment; and the cost of engineering, architectural, and legal expenses and of plans and specifications and other expenses necessary or incident to determining the feasibility or practicability of the construction of any hospitals, nursing homes, nursing care homes, assisted living communities, and personal care homes. The term shall also include administrative expense and such other expenses as may be necessary or incident to the construction of any hospitals, nursing homes, nursing care homes, assisted living communities, and personal care homes; the placing of the same in operation; and the condemnation of property necessary for such construction and operation.
    1. The executive director of the Georgia War Veterans Nursing Home in Augusta, Georgia, shall be appointed by the commissioner of veterans service upon the recommendation of the president of the Georgia Health Sciences University, subject to the approval of the Veterans Service Board.
    2. The executive director of the Georgia State War Veterans' Home in Milledgeville, Georgia, shall be appointed by the commissioner of veterans service upon the recommendation of the chief executive officer of the contractor operator of the home, subject to the approval of the Veterans Service Board.

(Ga. L. 1945, p. 319, § 6; Ga. L. 1966, p. 155, § 1; Ga. L. 1991, p. 330, § 1; Ga. L. 2005, p. 1476, § 1/HB 438; Ga. L. 2006, p. 72, § 38/SB 465; Ga. L. 2011, p. 227, § 26/SB 178; Ga. L. 2011, p. 752, § 38/HB 142.)

The 2011 amendments. The first 2011 amendment, effective July 1, 2011, inserted "assisted living communities," throughout paragraph (a)(4). The second 2011 amendment, effective May 13, 2011, part of an Act to revise, modernize, and correct the Code, substituted "Georgia Health Sciences University" for "Medical College of Georgia" in paragraph (b)(1).

Cross references.

- Regulation and construction of hospitals and other health care facilities generally, T. 31, C. 7.

Authority of Department of Veterans Service to purchase ambulance for transporting veterans among hospitals and facilities, § 50-19-5.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1991, a comma was added following "services" in paragraph (a)(3).

OPINIONS OF THE ATTORNEY GENERAL

Department is proper authority to receive federal contributions.

- Department of Veterans Service is the proper legal authority to receive gifts, grants, and other contributions from the federal government. 1945-47 Op. Att'y Gen. p. 462.

No authority to charge fees for nursing homes.

- Department of Veterans Service is not authorized to charge and collect fees for services rendered to residents of veterans' nursing homes operated by this state. 1979 Op. Att'y Gen. No. 79-5.

General Assembly intended that those veterans placed in state institutions, because of either a lack of space or a lack of appropriate services at the nursing homes, not be charged for services while in these state institutions. As the General Assembly intended that these veterans not be charged, then the General Assembly did not intend that those veterans who were actually in the nursing homes be charged. 1979 Op. Att'y Gen. No. 79-5.

RESEARCH REFERENCES

Am. Jur. 2d.

- 63C Am. Jur. 2d, Public Officers and Employees, §§ 3, 230 et seq. 77 Am. Jur. 2d, Veterans and Veterans' Laws, § 1 et seq.

C.J.S.

- 6 C.J.S., Armed Services, § 287 et seq. 67 C.J.S., Officers and Public Employees, § 224 et seq.

38-4-3. Department of Veterans Service and Veterans Service Board - Duty to work consistently and diligently; educational programs; personal appearances; assistance in preparation of claims.

  1. The Department of Veterans Service and all officers and employees thereof shall work consistently and diligently in all matters and particularly shall undertake to conduct an educational program for the information of veterans, their surviving spouses, and dependents, as to any and all rights accruing to such veterans under national, state, and local law. The commissioner of veterans service and the members of the board are directed to conduct educational programs by making personal appearances before veterans' organizations, service clubs, fraternal groups, and other such organizations so as to acquaint the public generally with the work of the department and the rights and privileges of veterans.
  2. The commissioner of veterans service, the board, and the department are authorized and directed to make available in any regions, locations, and areas throughout this state representatives of the department to assist veterans, surviving spouses, and dependents in the preparation and filing of claims for benefits and in acquainting them with all legal rights and privileges.

(Ga. L. 1945, p. 319, § 12; Ga. L. 1981, p. 700, § 1; Ga. L. 1983, p. 1401, § 3.)

Editor's notes.

- Ga. L. 1983, p. 1401, § 1, not codified by the General Assembly, provided that: "It is the intent of this Act to implement certain changes required by Article IV, Section V, Paragraph I, subparagraph (b) of the Constitution of the State of Georgia."

OPINIONS OF THE ATTORNEY GENERAL

Services required notwithstanding overlap with other agencies.

- Director (now commissioner) is required to serve Georgia residents who are or have been on active military duty, their families, and dependents. The fact that many of the services authorized to be performed by the Department of Veterans Service are concurrent with and overlap those offered by the federal Veterans Administration or by other agencies does not alter the statutory duty of the department to render such service when requested. 1965-66 Op. Att'y Gen. No. 66-143.

RESEARCH REFERENCES

Am. Jur. 2d.

- 63C Am. Jur. 2d, Public Officers and Employees, §§ 3, 230 et seq. 77 Am. Jur. 2d, Veterans and Veterans' Laws, §§ 3 et seq., 26 et seq., 64 et seq., 89 et seq.

C.J.S.

- 6 C.J.S., Armed Services, §§ 287 et seq., 327 et seq.

38-4-4. Veterans Service Board - Vacancies.

Subject to confirmation by the Senate at the next session of the General Assembly, all vacancies on the board occasioned by death, resignation, or other cause shall be filled by appointment of the Governor for the unexpired term.

(Ga. L. 1945, p. 319, § 3.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 63C Am. Jur. 2d, Public Officers and Employees, §§ 143, 145 et seq., 172.

C.J.S.

- 67 C.J.S., Officers and Public Employees, § 100 et seq.

38-4-5. Veterans Service Board - Meetings; place; purpose; called.

The Veterans Service Board shall meet once each month and at the meetings shall give attention to all things and matters properly coming under the jurisdiction of the board. The board may meet in the offices of the Department of Veterans Service or at any other location within the state where such board is conducting business pertaining to veterans. The meetings provided for in this Code section shall be for stated regular periods but shall not exceed more than two days in any one session. Called meetings of the board may be held by the chairman thereof or by the commissioner of veterans service.

(Ga. L. 1945, p. 319, § 2; Ga. L. 1956, p. 584, § 1; Ga. L. 1983, p. 1401, § 4; Ga. L. 1990, p. 371, § 1.)

Editor's notes.

- Ga. L. 1983, p. 1401, § 1, not codified by the General Assembly, provided that: "It is the intent of this Act to implement certain changes required by Article IV, Section V, Paragraph I, subparagraph (b) of the Constitution of the State of Georgia."

OPINIONS OF THE ATTORNEY GENERAL

Site of regular meetings.

- Regular meetings of the board may be held at a subdivision branch office. 1950-51 Op. Att'y Gen. p. 230.

Determination of compensation.

- Compensation of the board must be determined by the General Assembly. 1954-56 Op. Att'y Gen. p. 635.

RESEARCH REFERENCES

Am. Jur. 2d.

- 63C Am. Jur. 2d, Public Officers and Employees, §§ 5, 489 et seq., 516, 534, 538.

C.J.S.

- 67 C.J.S., Officers and Public Employees, §§ 270, 271, 275 et seq.

38-4-6. Veterans Service Board - Policy recommendations; appoint commissioner; discharge of commissioner; commissioner's political activity.

  1. The Veterans Service Board shall recommend to the commissioner matters of policy, procedure, and work projects.
  2. The board shall select a commissioner of veterans service, who shall serve for a term of four years and who shall be chief executive and administrative official of the department and the board. The board, however, at any time for good and sufficient cause, properly shown, may dispense with the services of the commissioner after notice has been given to the commissioner and a hearing has been held before the board, at which hearing the commissioner shall be heard in person, by counsel, or both. No person who serves as commissioner shall be eligible, except as provided in subsection (c) of this Code section, to run as a candidate in any primary, special, or general election for any state or federal elective office nor to hold any such office, except as provided in subsection (c) of this Code section, during the time he serves as commissioner and for a period of 12 months after the date he ceases to serve as commissioner.
  3. Notwithstanding subsection (b) of this Code section, nothing contained in this Code section shall prevent the commissioner from being appointed to any such office nor disqualify the commissioner to run in any such elections to succeed himself in any office to which he might have been appointed nor to hold such office in the event he is elected thereto and qualifies under the requirements of law.

(Ga. L. 1908, p. 66, § 5; Ga. L. 1931, p. 7, § 10; Code 1933, § 78-104; Ga. L. 1945, p. 319, § 4; Ga. L. 1955, p. 664, § 1; Ga. L. 1983, p. 1401, § 5; Ga. L. 1984, p. 22, § 38.)

Editor's notes.

- Ga. L. 1983, p. 1401, § 1, not codified by the General Assembly, provided that: "It is the intent of this Act to implement certain changes required by Article IV, Section V, Paragraph I, subparagraph (b) of the Constitution of the State of Georgia."

OPINIONS OF THE ATTORNEY GENERAL

Joint responsibility for administration of veterans affairs.

- Former Code 1933, §§ 78-101, 78-102, and 78-104 (see O.C.G.A. §§ 38-4-1,38-4-6, and38-4-7) place a joint responsibility on the director (now commissioner), as executive officer of the Department of Veterans Service, and the Veterans Service Board in the administration of all matters pertaining to the affairs of veterans. 1945-47 Op. Att'y Gen. p. 462.

For procedure required to dispense with director's service. See 1945-47 Op. Att'y Gen. p. 457.

RESEARCH REFERENCES

Am. Jur. 2d.

- 63C Am. Jur. 2d, Public Officers and Employees, § 68 et seq.

C.J.S.

- 67 C.J.S., Officers and Public Employees, §§ 37 et seq., 44.

38-4-7. Commissioner of veterans service - Compensation; payment; duties.

  1. Beginning July 1, 1999, the salary of the commissioner shall be set by the Governor and shall be paid in semimonthly installments. Such salary shall include any compensation received from the United States government and the amount of state funds paid shall be reduced by the amount of compensation received from the United States government.
  2. The commissioner, as executive and administrative officer of the Department of Veterans Service and the board, shall be in charge of the administration of all matters pertaining to veterans' affairs under this article and in conformity with rules and regulations of the board.
  3. It shall be the duty of the commissioner:
    1. To effectuate and carry out the laws of the state pertaining to veterans and to perform the duties required of him or her by law and by regulation of the board;
    2. To furnish information to all veterans of all wars in which the United States has engaged as to their rights and benefits under federal legislation, state legislation, or local ordinances;
    3. To assist all veterans, their dependents, and beneficiaries in the preparation and prosecution of claims before appropriate federal governmental departments;
    4. To report any evidence of incompetency, dishonesty, or neglect of duty on the part of any employee of a governmental agency dealing with veterans' affairs to the proper authority; and
    5. Generally to do and perform all things for the promotion of, in the interest of, and for the protection of the veterans of this state as to their rights under all federal and state laws.

(Ga. L. 1896, p. 65, § 1; Ga. L. 1906, p. 110, § 1; Ga. L. 1908, p. 66, § 4; Penal Code 1910, § 1471; Ga. L. 1919, p. 280, § 1; Ga. L. 1926, Ex. Sess., p. 53, §§ 1, 2, 4; Ga. L. 1931, p. 7, §§ 9, 11; Code 1933, § 78-102; Ga. L. 1945, p. 319, §§ 4, 5; Ga. L. 1955, p. 664, § 1; Ga. L. 1956, p. 160, § 1; Ga. L. 1957, p. 165, § 1; Ga. L. 1983, p. 1401, § 6; Ga. L. 1999, p. 1213, § 2.)

Editor's notes.

- Ga. L. 1983, p. 1401, § 1, not codified by the General Assembly, provided that: "It is the intent of this Act to implement certain changes required by Article IV, Section V, Paragraph I, subparagraph (b) of the Constitution of the State of Georgia."

OPINIONS OF THE ATTORNEY GENERAL

Joint responsibility for administration of veterans affairs.

- Former Code 1933, §§ 78-101, 78-102, and 78-104 (see O.C.G.A. §§ 38-4-1,38-4-6, and38-4-7) place a joint responsibility on the director (now commissioner), as executive officer of the Department of Veterans Service, and the Veterans Service Board in the administration of all matters pertaining to the affairs of veterans. 1945-47 Op. Att'y Gen. p. 462.

RESEARCH REFERENCES

Am. Jur. 2d.

- 63C Am. Jur. 2d, Public Officers and Employees, §§ 3, 382 et seq., 489, 503 et seq., 526, 529, 530, 536 et seq., 559.

C.J.S.

- 67 C.J.S., Officers and Public Employees, §§ 234 et seq., 270, 271, 275 et seq.

38-4-8. Commissioner of veterans service - Additional duties.

The commissioner of veterans service shall, in addition to the duties provided in this chapter:

  1. Acquaint himself, his assistants, and employees with the laws, federal, state, and local, enacted for the benefit of members of the armed forces, veterans, their families and dependents, and make studies of and collect data and information as to the facilities and services available to them;
  2. Cooperate with information or service agencies and organizations throughout the state in disseminating and furnishing counsel and assistance of benefit to residents of this state who are or have been members of the armed forces, their families, and dependents, which will show the availability of:
    1. Educational training and retraining facilities;
    2. Health, medical, rehabilitation, and housing services and facilities;
    3. Employment and reemployment services;
    4. Provisions of federal, state, and local laws affording financial rights, privileges, and benefits; and
    5. Other matters of similar, related, or appropriate nature;
  3. Assist veterans, their families, and dependents in the preparation, presentation, proof, and establishment of such claims, privileges, rights, and other benefits accruing to them under federal, state, and local laws; and
  4. Cooperate with all national, state, and local governmental and private agencies securing or offering services or any benefits to veterans, their families, and dependents.

(Ga. L. 1923, p. 121, § 4; Ga. L. 1926, Ex. Sess., p. 53, § 3; Ga. L. 1931, p. 7, §§ 10, 11; Code 1933, § 78-105; Ga. L. 1945, p. 319, § 13; Ga. L. 1983, p. 1401, § 7.)

Editor's notes.

- Ga. L. 1983, p. 1401, § 1, not codified by the General Assembly, provided that: "It is the intent of this Act to implement certain changes required by Article IV, Section V, Paragraph I, subparagraph (b) of the Constitution of the State of Georgia."

OPINIONS OF THE ATTORNEY GENERAL

Services required notwithstanding overlap with other agencies.

- Director (now commissioner) is required to serve Georgia residents who are or have been on active military duty, their families, and dependents. The fact that many of the services authorized to be performed by the Department of Veterans Service are concurrent with and overlap those offered by the federal Veterans Administration or by other agencies does not alter the statutory duty of the department to render such service when requested. 1965-66 Op. Att'y Gen. No. 66-143.

RESEARCH REFERENCES

Am. Jur. 2d.

- 63C Am. Jur. 2d, Public Officers and Employees, §§ 3, 230 et seq. 77 Am. Jur. 2d, Veterans and Veterans' Laws, §§ 3 et seq., 26 et seq., 64 et seq., 89 et seq.

C.J.S.

- 6 C.J.S., Armed Services, §§ 287 et seq. 67 C.J.S., Officers and Public Employees, § 234 et seq.

38-4-9. Commissioner of veterans service - Employment of personnel; preference to veterans, surviving spouses, and dependents; advise Governor, board, and General Assembly.

The commissioner of veterans service is authorized and directed to employ competent personnel to assist in the administration of the Department of Veterans Service. The commissioner shall give reasonable preference to veterans, their surviving spouses, and dependents in the matter of employment in the department; provided, however, that competency and efficiency shall not be sacrificed because of veteran affiliation, relationship, or service. It shall be the duty of the commissioner to advise the Governor, the Veterans Service Board, and the General Assembly as to needed veterans' legislation. As executive officer, the commissioner shall have exclusive authority to employ personnel necessary to carry out the purposes of this article and shall define the duties of employees, assign their official stations, and fix their compensation subject to the rules of the State Personnel Board.

(Ga. L. 1931, p. 7, § 13; Code 1933, § 78-103; Ga. L. 1945, p. 319, § 8; Ga. L. 1981, p. 700, § 1; Ga. L. 1982, p. 3, § 38; Ga. L. 1983, p. 1401, § 8; Ga. L. 2009, p. 745, § 1/SB 97; Ga. L. 2012, p. 446, § 2-61/HB 642.)

The 2012 amendment, effective July 1, 2012, substituted "rules of the State Personnel Board" for "State Personnel Administration" in the last sentence of this Code section.

Cross references.

- Fair employment practices in state hiring generally, § 45-19-20 et seq.

Editor's notes.

- Ga. L. 1983, p. 1401, § 1, not codified by the General Assembly, provided that: "It is the intent of this Act to implement certain changes required by Article IV, Section V, Paragraph I, subparagraph (b) of the Constitution of the State of Georgia."

Ga. L. 2012, p. 446, § 3-1/HB 642, not codified by the General Assembly, provides that: "Personnel, equipment, and facilities that were assigned to the State Personnel Administration as of June 30, 2012, shall be transferred to the Department of Administrative Services on the effective date of this Act." This Act became effective July 1, 2012.

Ga. L. 2012, p. 446, § 3-2/HB 642, not codified by the General Assembly, provides that: "Appropriations for functions which are transferred by this Act may be transferred as provided in Code Section 45-12-90."

RESEARCH REFERENCES

Am. Jur. 2d.

- 63C Am. Jur. 2d, Public Officers and Employees, § 3. 77 Am. Jur. 2d, Veterans and Veterans' Laws, §§ 116 et seq.

C.J.S.

- 6 C.J.S., Armed Services, § 327 et seq.

38-4-10. Commissioner of veterans service - Broad discretion in extending aid; utilize department to fullest.

The commissioner of veterans service shall exercise broad discretion in extending to veterans the aid and assistance provided by law and shall extend the services of the Department of Veterans Service so as to make available to all veterans the aid and services contemplated by law. In rendering the services required, the commissioner is authorized and empowered to advance consistently the interests of veterans of this state and to extend the Department of Veterans Service to its full limit of appropriations and funds provided by law.

(Ga. L. 1896, p. 65, § 2; Penal Code 1910, § 1474; Ga. L. 1931, p. 7, § 11; Code 1933, § 78-106; Ga. L. 1945, p. 319, § 10; Ga. L. 1982, p. 3, § 38; Ga. L. 1983, p. 1401, § 9.)

Editor's notes.

- Ga. L. 1983, p. 1401, § 1, not codified by the General Assembly, provided that: "It is the intent of this Act to implement certain changes required by Article IV, Section V, Paragraph I, subparagraph (b) of the Constitution of the State of Georgia."

OPINIONS OF THE ATTORNEY GENERAL

Services required notwithstanding overlap with other agencies.

- Director (now commissioner) is required to serve Georgia residents who are or have been on active military duty, their families, and dependents. The fact that many of the services authorized to be performed by the Department of Veterans Service are concurrent with and overlap those offered by the Veterans Administration or other agencies does not alter the statutory duty of the department to render such service when requested. 1965-66 Op. Att'y Gen. No. 66-143.

38-4-11. Commissioner of veterans service - Annual reports; content; recipients.

The commissioner of veterans service shall furnish to the Governor, the members of the General Assembly, the Veterans Service Board, veterans' organizations, and the public generally an annual report with reference to claims presented on behalf of veterans of this state, concerning veterans aided under federal, state, or local legislation, and otherwise to report the activities and accomplishments of the Department of VeteransService. The commissioner of veterans service shall not be required to distribute copies of the annual report to the members of the General Assembly but shall notify the members of the availability of the report in the manner which he or she deems to be most effective and efficient.

(Ga. L. 1896, p. 65, § 3; Penal Code 1910, § 1475; Ga. L. 1931, p. 7, § 11; Code 1933, § 78-107; Ga. L. 1945, p. 319, § 7; Ga. L. 1982, p. 3, § 38; Ga. L. 1983, p. 1401, § 10; Ga. L. 2005, p. 1036, § 28/SB 49.)

Editor's notes.

- Ga. L. 1983, p. 1401, § 1, not codified by the General Assembly, provided that: "It is the intent of this Act to implement certain changes required by Article IV, Section V, Paragraph I, subparagraph (b) of the Constitution of the State of Georgia."

RESEARCH REFERENCES

Am. Jur. 2d.

- 63C Am. Jur. 2d, Public Officers and Employees, §§ 3, 230 et seq. 77 Am. Jur. 2d, Veterans and Veterans' Laws, §§ 3 et seq., 26 et seq., 64 et seq., 89 et seq.

C.J.S.

- 6 C.J.S., Armed Services, §§ 287 et seq., 327 et seq.

38-4-12. Commissioner of veterans service - Duty to maintain records.

Subject to other laws, the commissioner shall maintain full, adequate, and complete copies of all records pertaining to claims of veterans who file claims for veterans' benefits through the Department of Veterans Service.

(Ga. L. 1945, p. 319, § 9; Ga. L. 1968, p. 1096, § 1; Ga. L. 1982, p. 3, § 38; Ga. L. 1983, p. 1401, § 11.)

Editor's notes.

- Ga. L. 1983, p. 1401, § 1, not codified by the General Assembly, provided that: "It is the intent of this Act to implement certain changes required by Article IV, Section V, Paragraph I, subparagraph (b) of the Constitution of the State of Georgia."

RESEARCH REFERENCES

Am. Jur. 2d.

- 77 Am. Jur. 2d, Veterans and Veterans' Laws, § 29.

38-4-13. Women veterans' office.

The commissioner of veterans service shall, in addition to the other duties provided in this chapter, maintain a women veterans' office. Such office shall conduct outreach to women veterans for the purpose of improving awareness of eligibility for federal and state veterans' benefits and services, conduct assessments of the specific needs of women veterans with respect to benefits and services, and review programs, research projects, and other initiatives designed to address or meet the specific needs of women veterans in this state. The women veterans' office shall work with veterans court divisions as provided for in Code Section 15-1-17 to assist with recruiting and training women veterans to serve as mentors for veterans participating in these court divisions. In the annual report provided for under Code Section 38-4-11, the commissioner of veterans service shall specifically report on the office provided for under this Code section.

(Code 1981, §38-4-13, enacted by Ga. L. 2017, p. 430, § 1/SB 108.)

Effective date.

- This Code section became effective July 1, 2017.

38-4-14. Creation of Georgia Veterans Service Foundation, Inc.; purpose; operation; reporting.

  1. The Veterans Service Board shall have the power and authority to establish a nonprofit corporation to be designated as the Georgia Veterans Service Foundation, Inc., to qualify as a public foundation under Section 501(c)(3) of the federal Internal Revenue Code for the purposes described in this Code section. The nonprofit corporation created pursuant to this Code section shall be created pursuant to Chapter 3 of Title 14, the "Georgia Nonprofit Corporation Code," and the Secretary of State shall be authorized to accept such filing.
    1. The purpose of the Georgia Veterans Service Foundation, Inc., shall be to actively seek supplemental funds and in-kind goods, services, and property to promote Georgia's state war veterans' homes and veterans' cemeteries and for any other purpose of the Veterans Service Board. Funds received by the foundation may be conveyed to the Department of Veterans Service or awarded through a competitive grant process administered by the Veterans Service Board.
    2. The Georgia Veterans Service Foundation, Inc., shall be governed by a board of directors composed of seven persons, who shall not be the same individuals as the currently serving members of the Veterans Service Board, who shall be appointed by the commissioner of veterans service, subject to the approval of the Veterans Service Board. Persons appointed to the board of directors shall have honorably served not less than three months in the armed forces of the United States or two years in a reserve or National Guard component of the armed forces of the United States. The members of the board of directors shall serve for seven-year terms that shall be staggered such that one member completes a term each year. The members may succeed themselves on the board of directors one time and thereafter may be reappointed to additional terms following a three-year interval after completion of any second consecutive term.
    3. The board of directors shall meet at least one time each year to conduct the business of the Georgia Veterans Service Foundation, Inc. The board of directors shall annually elect from its membership a chairperson, a vice chairperson, a secretary, and a treasurer.
    4. The board of directors shall appoint a chief executive officer, a chief operating officer, and a chief financial officer of the Georgia Veterans Service Foundation, Inc., from individuals who are employees of the Department of Veterans Service, excluding the commissioner of veterans service, who shall serve in these capacities without compensation but who shall be entitled to reimbursement of expenses reasonably incurred from the Georgia Veterans Service Foundation, Inc., for performing their duties under this Code section.
  2. The nonprofit corporation created pursuant to this Code section shall be subject to the following provisions:
    1. In accordance with the Constitution of Georgia, no governmental functions or regulatory powers shall be conducted by such nonprofit corporation;
    2. Upon dissolution of such nonprofit corporation incorporated by the Veterans Service Board, any assets shall revert to the Veterans Service Board or to any successor to the Veterans Service Board or, failing such succession, to the State of Georgia;
    3. To avoid the appearance of undue influence on regulatory functions by donors, no donations to such nonprofit corporation from private sources shall be used for salaries, benefits, or travel expenses of the Veterans Service Board;
    4. Such nonprofit corporation shall be subject to all laws relating to open meetings and the inspection of public records;
    5. The Veterans Service Board shall not be liable for the action or omission to act of such nonprofit corporation; provided, however, that as an administrative cost, such nonprofit corporation shall obtain and maintain errors and omissions liability coverage insurance in the amount of not less than $1 million; and
    6. No debts, bonds, notes, or other obligations incurred by such nonprofit corporation shall constitute an indebtedness or obligation of the State of Georgia nor shall any act of such nonprofit corporation constitute or result in the creation of an indebtedness of the state; provided, however, that such nonprofit corporation shall not have the power to incur long-term or short-term indebtedness in connection with its authority under this Code section but may incur short-term credit obligations. No holder or holders of such bonds, notes, or other obligations shall ever have the right to compel any exercise of the taxing power of the state nor to enforce the payment thereof against the state.
  3. The Georgia Veterans Service Foundation, Inc., shall prepare and make public an annual report identifying all donors to the Georgia Veterans Service Foundation, Inc., and the amount or property each donor donated, as well as all expenditures or other expenditures of money or property donated. Such report shall be provided to the Governor, the Lieutenant Governor, the Speaker of the House of Representatives, and the chairpersons of the House Committee on Defense and Veterans Affairs and the Senate Veterans, Military and Homeland Security Committee, or their successors. The Georgia Veterans Service Foundation, Inc., shall also provide such persons with a copy of all filings with the federal Internal Revenue Service.

(Code 1981, §38-4-14, enacted by Ga. L. 2018, p. 186, § 1/HB 422; Ga. L. 2019, p. 1056, § 38/SB 52.)

Effective date.

- This Code section became effective July 1, 2018.

The 2019 amendment, effective May 12, 2019, part of an Act to revise, modernize, and correct the Code, revised language and punctuation in subsection (b), paragraphs (c)(5) and (c)(6), and in subsection (d).

Cross references.

- Cemeteries for veterans, § 38-4-70 et seq.

ARTICLE 2 VETERANS BENEFITS

Cross references.

- Discount on park admission fees for certified disabled veterans, § 12-3-9.1.

Lifetime honorary hunting and fishing licenses for disabled veterans, § 27-2-4.

Courtesy nonresident fishing licenses to certain paralyzed or disabled veterans, § 27-2-4.2.

Appointment of guardians for recipients of veterans benefits, T. 29, C. 6.

Disabled veterans and blind persons engaging in peddling, operating businesses, or practicing professions, T. 43, C. 12.

Disabled veterans' homestead exemption for ad valorem tax purposes, Ga. Const., 1983, Art. VII, Sec. II, Para. I and § 48-5-48.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, annotations under former Code 1933, § 78-2-18 are included in the annotations for this section.

Purpose of this exempting provision is not to give to the Confederate War pensioner any lien or priority of payment for money deposited in a bank, but to protect the pensioner against garnishment or other legal process sued out by the pensioner's creditor to enforce a debt due by the pensioner to the creditor. Mobley v. Jackson, 171 Ga. 434, 156 S.E. 23 (1930) (decided under former Code 1933, § 78-218).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the issues covered in provisions, decisions under former Code 1933, Ch. 78-2, which dealt with veterans benefits for Confederate War soldiers and sailors and dependents, are included in the annotations for this Code section.

Continuing duty to pay pension.

- After a pensioner has once been enrolled, there is a duty to continue to pay the pension to the enrolled pensioner until there is notice of the pensioner's death, provided the pensioner continues residence in this state. 1945-47 Op. Att'y Gen. p. 468.

Presupposition of residence for pension and admission eligibility.

- Eligibility for a pension and admission to the confederate home presupposes residence at the time of the passage of Ga. L. 1947, p. 1143. 1948-49 Op. Att'y Gen. p. 289.

Residence status matter of intent.

- Fact that pensioner is outside state boundaries does not mean that the pensioner is not a resident of Georgia. Under the law of this state, residence is largely a matter of intent which may be inferred from a number of circumstances and facts. It is frequently true that an aged pensioner makes protracted visits to children in other states, but if it is the intention of the pensioner to ultimately return to this state, the pensioner would be entitled to continue to receive the pensioner's Georgia pension, and the pension regulations in such cases should be liberally construed so as to give deserving pensioners every benefit of the law and facts in connection with their right to receive pensions. 1945-47 Op. Att'y Gen. p. 468.

Judge must pay the pension on the first day of each month. 1948-49 Op. Att'y Gen. p. 623.

Widow of Civil War soldier entitled to pension.

- Widow of a soldier who enlisted and served in the military service of the Confederate States, or in a Georgia regiment or company, or under a Georgia command, or in the organized militia of the State of Georgia during the Civil War, who died in the service or was honorably discharged therefrom, shall be entitled to receive a pension upon proper proof that she is a bona fide resident citizen of this state, that she was married prior to the first day of January, 1920, and that she is presently unmarried. 1950-51 Op. Att'y Gen. p. 133.

RESEARCH REFERENCES

ALR.

- Constitutionality of statutes providing for bounty or pension for soldiers, 13 A.L.R. 587; 15 A.L.R. 1359; 147 A.L.R. 1432; 156 A.L.R. 1458.

Statute of limitations in respect of action or proceeding to establish right to, or recovery of benefits of, pension, 136 A.L.R. 809.

Retirement or pension proceeds or annuity payments under group insurance as subject to attachment or garnishment, 28 A.L.R.2d 1213.

Vested right of pensioner to pension, 52 A.L.R.2d 437.

Effect of divorce, remarriage, or annulment, on widow's pension or bonus rights or social security benefits, 85 A.L.R.2d 242.

Rights in survival benefits under public pension or retirement plan as between designated beneficiary and heirs, legatees, or personal representative of deceased employee, 5 A.L.R.3d 644.

PART 1 V ETERANS EDUCATION

RESEARCH REFERENCES

ALR.

- Constitutionality, construction, and application of statutes respecting housing for war veterans, 165 A.L.R. 814.

38-4-30. Short title.

This part shall be known and may be cited as "The Veterans Education Reorganization Act of 1949."

(Ga. L. 1947, p. 1143, § 1; Ga. L. 1949, p. 539, § 1; Ga. L. 1982, p. 3, § 38.)

Cross references.

- Requirements and procedures for issuing and awarding high school diplomas to honorably discharged World War II veterans, § 20-2-69.

Academic credit for military training and experience, § 20-4-38.

Department to fly POW-MIA flag at interstate rest areas, § 32-2-8.

RESEARCH REFERENCES

Am. Jur. 2d.

- 77 Am. Jur. 2d, Veterans and Veterans' Laws, § 142 et seq.

C.J.S.

- 6 C.J.S., Armed Services, §§ 297, 300.

38-4-31. Purpose of part.

It is declared to be the public policy of this state and the purpose of this part to assist veterans in securing the educational benefits to which they are entitled under any act of Congress, whenever enacted.

(Ga. L. 1947, p. 1143, § 2; Ga. L. 1949, p. 539, § 10.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 77 Am. Jur. 2d, Veterans and Veterans' Laws, § 142 et seq.

C.J.S.

- 6 C.J.S., Armed Services, §§ 297, 300.

38-4-32. Department of Veterans Service - Agency to deal with federal government; authority to enter into contracts; administer grants.

The Department of Veterans Service is designated as the agency of this state:

  1. To cooperate with the proper officials of the United States government in the administration of all laws of the United States conferring educational benefits upon veterans, including manual or other training, and to perform on behalf of this state such acts as may be necessary or required of the state, or any agency of the state, by any act of Congress or any regulation or directive of any federal department, agency, or other instrumentality, in the administration of any such law of the United States;
  2. To accept and administer any federal grant to the state for the purposes enumerated in paragraph (1) of this Code section; and
  3. To enter into contracts with the federal government for the training, placing, or supervision of veterans receiving benefits under federal laws and regulations; and for the qualification, approval, certification, and supervision of educational institutions and training establishments contemplated by any federal program for the education and training of war veterans.

(Ga. L. 1947, p. 1143, § 8; Ga. L. 1949, p. 539, § 4.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 77 Am. Jur. 2d, Veterans and Veterans' Laws, § 142 et seq.

C.J.S.

- 6 C.J.S., Armed Services, § 297, 300.

38-4-33. Department of Veterans Service - Various state educational bodies to cooperate with; full realization of federal benefits.

In order to promote the full realization of all the educational advantages offered to war veterans of this state by reason of any act of Congress, regulation, directive, declaration of policy, or grant of power from the federal government, the State Board of Education, the Department of Education, the State School Superintendent, the Board of Regents and the Chancellor of the University System of Georgia, and all other public education authorities of this state shall cooperate with the Department of Veterans Service in the formulation of such educational and training policies as may conform to accepted standards of efficiency and economy.

(Ga. L. 1947, p. 1143, §§ 11, 12, 13; Ga. L. 1949, p. 539, § 5.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 77 Am. Jur. 2d, Veterans and Veterans' Laws, § 142 et seq.

C.J.S.

- 6 C.J.S., Armed Services, § 297, 300.

38-4-34. Department of Veterans Service - Cooperation and coordination with private educational bodies.

In the execution of all programs for the education and training of veterans as provided in this part, the Department of Veterans Service shall cooperate with the proper officials of private schools, colleges, and universities of the state which are not under the official jurisdiction of the public educational authorities of the state in the placing of veterans at such institutions for education and training and shall, so far as possible, coordinate the programs of the private institutions with the standards of public institutions.

(Ga. L. 1947, p. 1143, § 14; Ga. L. 1949, p. 539, § 6.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 77 Am. Jur. 2d, Veterans and Veterans' Laws, § 142 et seq.

C.J.S.

- 6 C.J.S., Armed Services, § 297, 300.

38-4-35. Governor authorized to create private educational advisory bodies.